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THE PRESIDENCY 

ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES 
AND ITS LIMITATIONS 



University of Virginia 
Barbour-Page Foundation 



THE PRESIDENCY 

ITS DUTIES 

ITS POWERS, ITS OPPORTUNITIES 

AND ITS LIMITATIONS 



THREE LECTURES 
BY 

WILLIAM HOWARD TAFT ^ 



NEW YORK 
CHARLES SCRIBNER'S SONS 
1916 
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Copyright, 1916, by 
CHARLES SCRIBNER'S SONS 



Published April, 1916 




MAY 3 Ibl6 

)CI.A428804 f 



THE BARBOUR-PAGE LECTURE 
FOUNDATION 

The University of Virginia is indebted 
for the establishment of the Barbour-Page 
Foundation to the wisdom and generosity of 
Mrs. Thomas Nelson Page, of Washington, 
D. C. In 1907, Mrs. Page donated to the 
University the sum of ;?22,ooo, the annual 
income of which is to be used in securing 
each session the delivery before the Univer- 
sity of a series of not less than three lectures 
by some distinguished man of letters or of 
science. The conditions of the Foundation 
require that the Barbour-Page lectures for 
each session be not less than three in number; 
that they be delivered by a specialist in some 
branch of literature, science, or art; that the 

V 



lecturer present in the series of lectures some 
fresh aspect or aspects of the department of 
thought in which he is a speciaHst; and that 
the entire series dehvered each session, taken 
together, shall possess such unity that they 
may be published by the Foundation in book 
form. 



EDITORIAL NOTE 

The lectures that comprise this volume 
were delivered at the University of Virginia 
in January, 1915. Except for slight changes 
in points of detail, chiefly dependent upon 
the difference in time between their delivery 
and their publication, they appear in their 
original form. 



I claim no special learning from the books 
as to the presidency, but I can bring prac- 
tical experience that the necessary paucity 
in living ex-Presidents makes somewhat ex- 
ceptional. Mr. Squeers, in explaining to 
Nicholas Nickleby the system of vocational 
and practical study pursued at Dotheboys 
Hall, required the boy first to spell "win- 
ders" and then to go and clean "winders," 
in order that the subject might be well 
fixed in his mind. I have merely reversed 
the process, and, having tried to clean the 
"winders," I am here to make some effort 
correctly to spell the word. The question 
of the presidency, its duties, its responsi- 
bilities, and its limitations, ought, perhaps, 
to be settled, not in the heat of the issues 
that constantly arise in its exercise, but in 
the careful study, from an unbiased stand- 
point, of the historian and the jurist. Still, 



THE PRESIDENCY 



no such determination will be a fair one 
that does not give some weight to the 
practical considerations that must influence 
him. While he may not appear to be the 
fairest judge of the field of jurisdiction 
which the Constitution intended for him, 
his views upon the subject, from the stand- 
point of an actor, may contribute something 
to the solution of the question arising. I 
may add, on the other hand, that retirement 
from office to a place of study and con- 
templation, rather than of action, modifies 
somewhat the views formed dum fervet opus. 
This, I think, is significant of the impor- 
tance that should be attached to insistence 
upon constitutional limitations, and the wis- 
dom of having those limitations from time 
to time interpreted by another branch of the 
government than that to whose action they 
are to apply. 

The inefficient performance of their exec- 
utive functions by the Continental Congress 
and the ad interim committees of that Con- 



ORIGIN OF THE OFFICE 



gress, no one can doubt who will read the 
correspondence of Washington during the 
Revolution or observe the stagnant chaos 
there was after independence was won. 
Nevertheless, the example of the one-man 
power under George III, which he main- 
tained by his corrupt control of Parliament, 
made the convention doubtful as to the 
method by which, and the persons through 
whom, the executive power should be exer- 
cised. Roger Sherman, representing a mi- 
nority, thought that the executive should be 
the mere agent of the legislature to carry 
out their will expressed in detail, and Ran- 
dolph, of Virginia, supporting Sherman's 
view, contended further that the executive 
should be vested in a number of persons. 
Hamilton, at the other extreme, thought that 
the executive should be selected for life and 
should be given ample powers independent 
of the legislative branch. The happy result 
which was reached between the two extremes 
is only one of many instances of the triumph 
of clear-headed common sense, wise patriot- 



THE PRESIDENCY 



ism, and the personal sacrifice of cherished 
norions which we find in the compromises 
embodied in our wonderful Constitution. 

I am strongly inclined to the view that it 
would have been a wiser provision, as it 
was at one time voted in the convention, to 
make the term of the President seven years 
and render him ineligible thereafter. Such a 
change would give to the executive greater 
courage and independence in the discharge 
of his duties. The absorbing and diverting 
interest in the re-election of the incumbent 
taken by those federal civil servants who re- 
gard their own tenure as dependent upon 
his would disappear and the efficiency of ad- 
ministration in the last year of a term would 
be maintained. I think it would have been 
better, too, to bring the executive a little 
closer in touch with Congress in the initia- 
tion of legislation and its discussion, notably 
in the matter of budgets and the economical 
administration of governmental affairs. But 
we are in an age of iconoclasts, and should 
a movement gain force to introduce some 



PRESIDENT AND PREMIER 



slight amendments which experience would 
sustain, the benefit to be derived might be 
far outweighed by the danger of radical 
changes in the Constitution subversive of 
the great benefits that it has secured to the 
American people. 

As every President has to do, I made many 
addresses, and the gentlemen who intro- 
duced me, by way of exalting the occasion 
rather than the speaker, not infrequently 
said that he was about to introduce one who 
exercised greater governmental power than 
any monarch in Europe. I need not point 
out the inaccuracies of this remark by com- 
paring the powers of the President of the 
United States with those of the rulers of 
countries without really popular legislative 
government. In parliamentary governments 
(responsible governments, so called), the head 
of the state, if he is a King, reigns but does 
not rule, and if he is a President, or a gov- 
ernor-general, presides but does not govern. 
There is one in such a government, however, 
who exercises in some respects a greater 



THE PRESIDENCY 



power than the President has. He is the 
leader of the majority in the popular house. 
He is the premier, and exercises both execu- 
tive and legislative functions. The executive 
head of the state, whether King or Presi- 
dent, follows his recommendations in exec- 
utive work, and he, with his colleagues in 
his cabinet, control the legislation. Now, it 
would be idle to discuss which is the better 
form of government. It may be generally 
said that those who have a parliamentary, 
responsible government, as it is called, like 
that form, and that we like our form. Ours 
is more rigid, in that it divides the executive 
from the legislative, but is like parliamen- 
tary government in that in both the judi- 
cial branch is independent of the other two. 
Our ancestors acted much under the in- 
fluence of Montesquieu, and believed that 
in the independence and separation of the 
legislative, the executive, and the judicial 
branches lay greater security for civil liberty. 
It is often said that parliamentary gov- 
ernment is more responsive to the will of 



PARLIAMENTARY GOVERNMENT 7 

the people than our rigid system of an elec- 
tion of a President every four years and of a 
Congress every two years. This is hardly 
accurate. The government is responsive to 
the views of the majority of the members 
of the more popular house of parliament, 
and, if those views do not change, it may 
last, in England at least, for five years 
without consulting the popular electorate. 
The executive and the legislative branches 
are thus not affected by change in popular 
opinion unless the same change affects mem- 
bers whose views it is naturally difficult to 
change because elected as partisans and sup- 
porters of the policies of the existing gov- 
ernment. In other words, a responsible par- 
liamentary government is responsible to a 
particular parliament, not to the people. 
Such a government offers greater effective- 
ness, in that the same mind or minds control 
the executive and the legislative action, and 
the one can be suited to the other; whereas 
our President has no initiative in respect to 
legislation given him by law except that of 



THE PRESIDENCY 



mere recommendation, and no legal or formal 
method of entering into the argument and 
discussion of the proposed legislation while 
pending in Congress. To one charged with 
the responsibilities of the President, espe- 
cially where he has party pledges to perform, 
this seems a defect. But whatever I thought 
while in office, I am inclined now to think 
that the defect is more theoretical than 
actual. It usually happens that the party 
which is successful in electing a President 
is also successful in electing a Congress to 
sustain him, and the natural party cohesion 
and loyalty, as well as a certain prestige 
which the President has when he enters of- 
fice, make his first Congress one in which he 
can exercise considerable moral influence in 
the framing and passage of legislation to ful- 
fil party promises. The history of the pres- 
ent administration, and that of many pre- 
vious administrations, bears me out in this. 
Not infrequently the second Congress of 
an administration contains a majority polit- 
ically adverse to the President in either one 



THE PRESIDENT AND LEGISLATION 9 

or both of its houses, and, when that is the 
case, legislation is limited to appropriation 
bills and non-political measures, if there are 
any such. The President in such a case 
naturally chafes under an inability to put 
through important bills which he deems of 
the highest value. On the whole, however, 
I do not think the country suffers. Cer- 
tainly not in this age and generation, when 
the bane of political methods, when the 
danger to the best interests of the country, 
is in the overwhelming mass of ill-digested 
legislation. Senator Root, in his recent 
American Bar Association address, said that 
in Congress and the State legislatures this 
amounted to sixty-five thousand different 
enactments in the last four years. 

We live in a state of politics and public 
mind where legislators seem to regard the 
passage of laws as much more important than 
the results of their enforcement. Too often 
the value of the legislation is not in the good, 
intrinsic results of its operation, but in its 
vote-getting quality — in its use as molasses 



lo THE PRESIDENCY 

for the catching of political flies. Therefore, 
a system in which we may have an enforced 
rest from legislation for two years is not bad. 
It affords an opportunity for digestion, for 
the development and detection of defects 
in laws already enacted. Bars in music are 
used in the maintenance of harmony. The 
world is not going to be saved by legislation, 
and it is not going to be injured by an occa- 
sional two years of respite from the panacea 
and magic that many modern schools of poli- 
ticians seem to think are to be found in the 
words: "Be it enacted." 

The functions of the President are both 
legislative and executive. Among the execu- 
tive functions we shall find a gradual tend- 
ency to a division into the purely executive 
and the quasi-legislative and quasi-judicial 
duties. The veto power, however, is purely 
legislative. The Constitution provides that 
after both houses shall have passed a bill it 
shall be presented to the President; that if 
he approve he shall sign it, but if not he 



THE VETO POWER ii 

shall return it with his objections to the 
house where it originated, which shall pro- 
ceed to reconsider it; and that if two-thirds 
of that house agree to pass the bill it shall 
be sent, with the objections of the President, 
to the other house, where it shall be recon- 
sidered, and if approved by two-thirds of 
that house it shall become a law. It has 
been contended that this veto power is execu- 
tive. I do not quite see how. Of course, the 
President does not take part in the framing 
of the bill, in the discussion of it, or in its 
amendment. He has no power to veto part 
of the bill and allow the rest to become a 
law. He must accept it or reject it, and 
even his rejection of it is not final unless he 
can find one more than one-third of one of 
the houses to sustain him in his veto. But 
even with these qualifications he is a par- 
ticipant in legislation, and, except for his 
natural and proper anxiety, due to the cir- 
cumstances, not to oppose the will of the 
two great legislative bodies, and to have 
harmony in the government, the circum- 



12 THE PRESIDENCY 

Stances which govern him in his action 
must be much Hke those which control the 
members of the legislature. In the Consti- 
tutional Convention there were proposals 
looking to the revision of bills which had 
passed both houses by a council, to include 
the President and the supreme judges, with 
the power to reject bills transgressing the 
constitutional limits of congressional discre- 
tion. Very wisely the proposal was aban- 
doned, and what was done was to adopt, in 
modified form, the provision for the royal 
veto in the British constitution. 

A discussion of the veto power by Mr. 
Edward Campbell Mason, in a Harvard 
publication, gives an interesting review of 
its origin. The author expresses the opinion 
that the veto is the result of the shrinking 
of a real legislative function of the King, ex- 
ercised at first broadly and affirmatively and 
gradually restricted by the growth of parlia- 
mentary power. He points out that in early 
days laws were enacted on a petition of 
Parliament to the King, for legislation, and 



THE VETO POWER 13 

a proclamation of the King embodying the 
law as he was willing to have it. For a long 
time he did not confine himself to the re- 
quest in the petition; but after Parliament 
acquired greater influence it presented to 
the King the proposed statute, drawn in 
proper and exact terms, and successfully re- 
sisted his giving it a diflFerent form. Thus 
the King's function in legislation became one 
of negation only. This history of its origin 
shows that, even in the limited and suspen- 
sive form it has in our Constitution, the veto 
is legislative, a brake rather than a steam- 
chest, but, nevertheless, a very important 
part of the machinery for making laws. 

This conclusion helps the President to an- 
swer correctly the practical question often 
presented to him, whether he is limited, as 
some contend, to vetoing a bill only when he 
thinks it unconstitutional. I have no hesi- 
tation in rejecting such a view. If anything 
has been established by actual practise, it is 
that the President, in signing a bill, or return- 
ing it unsigned, must consider the expedi- 



14 THE PRESIDENCY 

ency and wisdom of the bill, as one engaged 
in legislation and responsible for it. The 
Constitution used the word "approve," and 
it would be a narrow interpretation to con- 
tract this into a mere decision as to legal 
validity. 

There were only four Presidents, Mr. 
Mason says, who did not exercise the veto 
power — Washington, the first Adams, Jeffer- 
son, and the second Adams. They were 
Presidents who were fortunate enough to 
have friendly Congresses in their terms of 
office. It is an old maxim that there are 
other ways of killing a cat than by choking 
it with butter, and it is a great deal easier — 
it does not rock the boat so much — to use 
one's influence with the legislators to pre- 
vent objectionable bills passing than it is to 
wait until they do pass and then veto them. 
Only once in Jefferson's time was he seri- 
ously opposed to a bill presented to him. 
That was the repeal of the embargo of 1808, 
but he did not veto the repeal because many 
of his friends felt the inadvisability of con- 



THE VETO POWER 15 

tinuing the embargo, and he yielded sadly 
to the necessity. Of course the vetoed bills 
are greatest in number when the President 
and Congress differ politically, and it is at 
such a time that one hears congressmen of 
the opposition denounce, with all the elo- 
quence and emphasis possible, the exercise 
of the royal prerogative which defeats the 
will of the people. When one in the presi- 
dential office first hears those words, visions 
of the fate of Charles I may trouble him 
some, but after a time he becomes accus- 
tomed to that well-worn expression of legis- 
lators whom the veto of a favorite bill has 
disappointed. The truth is that it often 
happens that the President more truly rep- 
resents the entire country than does a ma- 
jority in one or both of the houses. His 
constituency is the electorate of the entire 
United States, and by reason of that he is 
much freer from the influence of local in- 
terest and of the play of those local forces 
which, united together by log-rolling, some- 
times constitute a majority in both houses 



i6 THE PRESIDENCY 

for certain kinds of legislation — like a river- 
and-harbor bill or a public-building bill. 
To criticise the President's use of the veto 
as the exercise of a royal prerogative is 
absurd. Historically, the function finds its 
prototype in the royal veto of the British 
constitution; but no King of England has 
exercised it for two hundred years. He 
would lose his throne if he did. Here the 
veto is, not the act of an hereditary monarch, 
but of one elected by all the people to rep- 
resent all the people and charged by the 
fundamental law with the responsibility of 
its exercise. 

The President, in considering the constitu- 
tionality of a bill presented to him for signa- 
ture, is in a different position from that of 
the Supreme Court when the validity of an 
act of Congress is in question before it. 
This is the distinction which the elder Pro- 
fessor Thayer, of Harvard, so wisely and ably 
explained and emphasized. A serious doubt 
of the validity of a proposed bill may well 
lead a member of Congress to vote against 



TEE VETO POWER 17 

it, or the President to veto it, while such a 
doubt will not justify the court in treating 
the act as a nullity, unless the court reaches 
an indisputable conviction that Congress 
has exceeded its powers, after indulging the 
properly strong presumption in favor of the 
act's validity. It may very well happen, 
therefore, that a President may veto a bill, 
Congress may pass it over his veto, the Su- 
preme Court may sustain the law, and yet 
the President and the court have the same 
view in regard to the act. I have in mind 
a bill which I vetoed and which was passed 
over my veto. It was the so-called Webb 
bill, which declared the shipping of liquor 
from one State into another, where its sale 
was unlawful by the law of the State, to be 
federally unlawful. It seemed to me that 
this was in effect a delegation of power to 
the States to make differing rules with re- 
spect to interstate commerce in something 
which up to this time has been regarded as 
a lawful subject of such commerce, and that 
it was, in fact, pro tanto a repeal of the inter- 



1 8 THE PRESIDENCY 

State commerce clause of the Constitution by 
a congressional act. If Congress wishes to 
declare Hquor an unlawful subject of com- 
merce from one State to another, Congress 
probably has the power; but to yield to 
Congress the power to say that one State 
may declare something thus unlawful among 
the States, while another may declare it law- 
ful, it seemed to me was a serious interfer- 
ence with the beneficent operation of the 
interstate commerce clause. I reached this 
conclusion from what appeared to me the 
necessary implication from the judgments of 
the Supreme Court; but I had much less 
hesitation in vetoing the bill than the court 
should have in declaring it to be beyond 
the permissible limits of congressional discre- 
tion. 

I emphasize this point because I think 
that it is of the highest importance that the 
constitutional vaHdity of a measure should 
be fairly considered in the legislature and by 
him who exercises the veto power. I have 
observed a criticism of our system of legis- 



THE VETO POWER 19 

lation under a written constitution by some 
English publicists, that it leads to a discus- 
sion of questions of validity of proposed leg- 
islation rather than of its expediency. This 
criticism does not seem to me to be weighty 
or correct. We don't discuss the validity of 
acts enough in legislatures, and I doubt if 
governors consider as much as they ought 
the limitations of the fundamental law in 
signing bills. Our legislatures have thrown 
too much of the burden of maintaining con- 
stitutional limitations on the courts by an 
utter disregard of the Constitution them- 
selves. This recklessness has, in fact, weak- 
ened the weighty presumption courts ought 
to indulge in favor of the validity of legisla- 
tive action. Legislatures have thus forced 
on courts the duty of annulling many laws 
palpably in the teeth of the Constitution, 
and shifted to the court that responsibility 
for their defeat that the legislatures should 
hay« assumed. 

The veto power does not include the right 
to veto a part of a bill. The lack of such a 



20 TEE PRESIDENCY 

power in the President has enabled Congress, 
at times, to bring to bear a pressure on him 
to permit legislation to go through that other- 
wise he would veto. Appropriation bills are 
necessary for the life of the government, and 
if Congress, by putting a ** rider" of general 
legislation on one of these, says, **We will 
throttle the government unless you consent 
to this," it puts the President in an awkward 
situation. Still, I think the power to veto 
items in an appropriation bill might give too 
much power to the President over congress- 
men. It is wiser to leave the remedy for 
the above to the action of the people in con- 
demning at the polls the party which be- 
comes responsible for such riders than to 
give, in such a powerful instrument, a temp- 
tation to its sinister use by a President eager 
for continued political success. 

There is an aspect of the power of veto of 
Items in an appropriation bill that, of course, 
ought not to be ignored. The wasteful ex- 
travagance that we now have in Congress 
and in legislatures, and the alarming increase 



THE VALUE OF A BUDGET 21 

in the total of annual appropriations, brings 
home to every student of political tenden- 
cies a danger that confronts us. We have 
been very rich. Our tax resources have been 
so great that the only side of the ledger which 
our legislators have taken great interest in 
has been the side of expenditures. They 
have proceeded on the assumption that there 
would always be money enough, even if we 
had to pass a war-tax bill to raise it. A 
President with the power to veto items in 
appropriation bills might exercise a good 
restraining influence in cutting down the 
total annual expenses of the government. 
But this is not the right way. The right 
way, as shown in England and other coun- 
tries where expenditures have, of necessity, 
to be counted and proportioned to resources, 
is a budget, stated at the beginning of a 
session, which shows the sources, first, and 
then the possible expenditures. Both sides 
of the account are fully stated before Parlia- 
ment acts, and that is what we should have 
in this country. Congress, without any con- 



22 THE PRESIDENCY 

stitutional amendment or even legislation, 
might give it. If the appropriation com- 
mittee of each house and the Ways and 
Means Committee were united, and this new 
committee were given jurisdiction to prepare 
all appropriation bills, there is not any rea- 
son at all why they might not have a proper 
budget. But now, with appropriation bills 
divided between a dozen committees, and 
with a different committee to provide the 
revenue. Congress can have no idea, in pass- 
ing on appropriation bills, of the total of ap- 
propriations, on the one hand, and no idea 
of its relation to probable income, under ex- 
isting revenue acts, on the other. Every- 
thing is confusion, and, as Mr. Fitzgerald, 
chairman of the appropriation committee in 
the house, recently said, "It is a horrible 
mess." 

The Constitution provides that if the 
President does not return the bill presented 
to him within ten days (Sundays excepted) 
after its presentation it is to become law 
just as if he had signed it, unless Congress 



THE PRESIDENT'S SIGNATURE 23 

by adjourning prevents its return, in which 
case it is not to become a law. 

It has never been decided by the Supreme 
Court whether a President by signing a bill 
within ten days after its passage may give 
it vaHdity as a law if Congress adjourns 
within that ten days and before his signa- 
ture. The court has said that he may sign 
a bill during a recess of Congress. It seems 
to me, however, that the practise makes clear 
that he may not do this after adjournment. 
There is only one instance of such a signa- 
ture. President Monroe failed to sign a bill 
which he had intended to sign. After con- 
ferring with his cabinet he decided that it 
was wiser to ask Congress to re-enact it. 
President Lincoln did sign a bill after an ad- 
journment and the bill was filed with the 
secretary of state and printed among the 
statutes. When the matter was brought 
to the attention of the Senate, however, 
the power of the President to do so was 
questioned and denied, and a new bill 
of substantially the same purport passed 



24 THE PRESIDENCY 

both houses and was signed by the Pres- 
ident. 

The language of the Constitution with ref- 
erence to what the President shall do with 
a bill leaves only two alternatives, one that 
if he approve he shall sign the bill, the other 
that he shall return it with his objections. 
It does provide that if he fails to return it 
within ten days it shall become a law, but 
this would seem to be only a provision for 
his neglect. In practise, however, some Pres- 
idents have allowed bills to become law 
without their signature, with the idea, I pre- 
sume, that objections to the bill prevented 
affirmative approval and yet were not of 
such a character as to justify a veto. Mr. 
Cleveland looked at the matter in this way 
when he allowed the Wilson-Gorman tariff 
bill to become a law without his signature, 
though he had denounced it in most em- 
phatic terms in a letter to Mr. Catchings, of 
the house, as an act of perfidy and dishonor. 
My own judgment is that the wiser course 
in such a case is for the President to sign the 



TEE POCKET VETO 2$ 

bill, with a memorandum of his reasons for 
doing so, in spite of his objections. 

What is called a pocket veto is exercised 
near the adjournment of Congress, when the 
President does not find time to examine a 
bill carefully because it is handed to him 
at the last moment, and by failing to sign 
it he prevents its becoming law. This is a 
proper practise, and tends to make Congress 
chary of presenting, at the last moment, bills 
of doubtful expediency or validity, because 
such a pocket veto is final and no oppor- 
tunity is given to Congress by a two-thirds 
vote to override it. 

I don't think that in the century and a 
quarter of our political history we have suf- 
fered from abuses of the veto power, and cer- 
tainly a number of instances can be pointed to 
where the President has saved the country 
from a step that would have been attended 
with great danger and humiliation. One of 
the notable instances is the veto of the in- 
flation bill by General Grant. If the people 
really want legislation, a veto will not pre- 



26 THE PRESIDENCY 

vent it. It may delay it two years, but in 
the end the people must prevail, and a de- 
lay of two years or four years in legislation 
doubtful enough to prompt a successful veto 
is not likely to involve any such injury to 
the public weal as may be brought about by 
an irrevocable step in its dishonor and vir- 
tual repudiation like the inflation bill. 

Experience shows that no President exer- 
cises the veto power for the fun of it. Natu- 
rally, he must have reasons of a very serious 
nature to set up his judgment against that 
of a majority in both houses, and he should 
show in his objections, not a mere difference 
of opinion as to the expediency of the bill, 
but the presence in it of features so injurious 
in their immediate effect upon the public 
weal, or so vicious as a precedent, that he is 
entitled to suspend the effect of the legisla- 
tive will until further consideration be given 
the matter by the people. 

Having thus considered the legislative 
power of the President, I come now to his 



TEE CABINET 27 



Strictly executive functions. The less impor- 
tant and more formal powers can be grouped 
in one head. He is given the power to con- 
sult the heads of executive departments as 
to questions arising in their respective de- 
partments. He is to inform Congress of the 
state of the Union and recommend meas- 
ures to it. He is to issue commissions to all 
officers of the United States and is to con- 
vene Congress in extra session and adjourn 
it in case of disagreement between the 
houses. 

(The Constitution does not mention the 
cabinet and does not recognize it as a legal 
body. There has crept into some statutes, 
loosely drawn, the expression "cabinet offi- 
cer," and the Supreme Court occasionally, 
in its discussion of executive power, has used 
the term. The Constitution does not seem 
to contemplate a meeting in council upon the 
state of union of the heads of departments. 
English history in this regard furnishes an 
analogy. The cabinet is not a statutory body 
in Great Britain. It exists by custom only. 



28 THE PRESIDENCY 

Indeed, the whole system of responsible gov- 
ernment by which a vote indicating a want 
of confidence in the premier and his associ- 
ates requires their resignation, while in the 
English sense it is constitutional, only abides 
in custom. The EngHsh premier, in selecting 
his associates in his cabinet, takes members 
of Parliament who will effectively co-oper- 
ate with him in retaining the indispensa- 
ble backing of the majority. The members 
of the cabinet in such a government are of 
independent strength, and their respective 
voices, therefore, naturally have more im- 
portance due to that fact. Each as a mem- 
ber of the government must be prepared, on 
the floor of one house or the other, to answer 
questions, defend the government, and advo- 
cate the legislation which it urges and for 
which it becomes responsible. An English 
cabinet officer must, therefore, have quaHfi- 
cations not necessarily required of a member 
of a presidential cabinet. 

Without any violation of constitutional 
limitation. Congress might well provide that 



THE CABINET 29 



heads of departments, members of the Presi- 
dent's cabinet, should be given access to the 
floor of each house to introduce measures, to 
advocate their passage, to answer questions, 
and to enter into the debate as if they were 
members. This would impose on the Presi- 
dent greater difficulty in selecting his cabinet, 
and would lead him to prefer men of legisla- 
tive experience who have shown their power 
to take care of themselves in legislative de- 
batej It would stimulate the head of each 
department to more thorough investigation 
into its actual operations and to closer super- 
vision of its business. On the other hand, 
it would give the executive what he ought 
to have — some initiative in legislation, and 
an opportunity for the presence of competent 
representatives who could keep each house 
advised of facts in respect to the operation of 
existing legislation and to what is actually 
doing in the government, which it seems im- 
possible for Congress easily to learn either 
through the investigation of committees or 
by formal request for papers and informa- 



30 THE PRESIDENCY 

tion. The time lost in Congress over useless 
discussion of issues that might be disposed 
of by a single statement from the head of a 
department no one can appreciate unless he 
has filled such a place. 

No official minutes are kept of the cabinet 
meetings. The meetings are entirely at the 
call of the President, and he may dispense 
with them altogether if he chooses. Every- 
thing is informal. The seats of the cabinet 
members are assigned around the cabinet 
table according to official procedure, with the 
President at the head, and that is the only 
observance of a form that I know of. 

The office of the President is not a record- 
ing office. The vast amount of correspond- 
ence that goes through it, signed either by 
the President or his secretaries, does not be- 
come the property or a record of the govern- 
ment unless it goes on to the official files of 
the department to which it may be addressed. 
The President takes with him all the cor- 
respondence, original and copies, carried on 
during his administration. Mr. Robert T. 



THE CABINET 31 



Lincoln told me that in his father's day, 
great as the business must have been dur- 
ing the war, there was practically no corre- 
spondence except what was purely personal, 
carried on in the executive office by two or 
three clerks. Everything was referred to the 
different departments for disposition, with 
sometimes a memorandum by the President. 
Now the business has grown so that it re- 
quires twenty-five clerks and stenographers 
to do the necessary work. 

Mr. Lincoln is said to have remarked that 
in the cabinet, after discussion and an inti- 
mation of opinion, there was only one vote, 
and that was the vote of the President. It 
is interesting and instructive to note Jeffer- 
son's comment on the operation of the cab- 
inet in Washington's day. In a letter, writ- 
ten after he had left office, to a French 
publicist who had advocated a plural execu- 
tive, he dissented and approved the plan of 
our Constitution as follows: 

The failure of the French Directory seems to have 
authorized a belief that the form of a plurality, however 



32 THE PRESIDENCY 

promising in theory, is impracticable with men consti- 
tuted with the ordinary passions. While the tranquil 
and steady tenor of our single executive, during a 
course of twenty-two years of the most tempestuous 
times the history of the world has ever presented, 
gives a rational hope that this important problem is at 
length solved. Aided by the counsels of a cabinet of 
heads of departments, originally four, but now five, 
with whom the President consults, either singly or all 
together, he has the benefit of their wisdom and in- 
formation, brings their views to one centre, and pro- 
duces an unity of action and direction in all the branches 
of the government. The excellence of this construc- 
tion of the executive power has already manifested it- 
self here under very opposite circumstances. During 
the administration of our first President, his cabinet 
of four members were equally divided by as marked 
an opposition of principle as monarchism and repub- 
licanism could bring into conflict. Had that cabinet 
been a directory, like positive and negative quantities 
in algebra, the opposing wills would have balanced each 
other and produced a state of absolute inaction. But 
the President heard with calmness the opinions and 
reasons of each, decided the course to be pursued, and 
kept the government steadily in it, unaffected by the 
agitation. The public knew well the dissensions of the 
cabinet, but never had an uneasy thought on their 
account, because they knew also they had provided a 
regulating power which would keep the machinery in 
steady movement. 



TEE CABINET ZZ 



He then proceeds to tell of his own admin- 
istration, in which the cabinet was so selected 
as to produce wonderful harmony. He says: 

There never arose, during the whole time, an In- 
stance of an unpleasant thought or word between the 
members. We sometimes met under differences of 
opinion, but scarcely ever failed, by conversing and 
reasoning, so to modify each other*s ideas as to pro- 
duce an unanimous result. Yet, able and amicable as 
the members were, I am not certain this would have 
been the case had each possessed equal and independ- 
ent powers. Ill-defined limits of their respective de- 
partments, jealousies, trifling at first, but nourished 
and strengthened by repetition of occasions, intrigues 
without doors of designing persons to build an impor- 
tance to themselves on the divisions of others, might, 
from ^ small beginnings, have produced persevering op- 
positions. But the power of decision in the President 
left no object for internal dissension, and external In- 
trigue was stifled In embryo by the knowledge which 
incendiaries possessed, that no division they could fo- 
ment would change the course of the executive power. 

As Strong an instance of opposition forces 
as those depicted by Jefferson in Washing- 
ton's day could be found in Lincoln's, and 
the advantage of that single vote of the 
President was then even more emphasized. 



34 TEE PRESIDENCY 

The power and duty of the President to 
infdrm Congress on the state of the Union, 
and to recommend measures for its adoption, 
need very Httle comment, except to say that 
President Washington and President Adams 
treated this as a reason for visiting in person^ 
and delivering their messages orally. The 
Senate in Washington's day was a small 
body of twenty-six or twenty-eight, and at 
first when he had made a treat}^, or was about 
to make a treat}^, and wished the advice and 
consent of the Senate, he would repair in 
person to the Senate chamber. He made a 
treaty with the Indians through the assist- 
ance of General Knox, afterward secretary of 
war, who was an expert on Indians in those 
days, and he took Knox with him to the 
Senate. He found the Senate disposed to 
postpone confirmation until they could con- 
sider the matter. Maclay, a senator, de- 
scribes the scene, and paints in strong lan- 
guage the evident impatience and anger of 
Washington at what he regarded as unnec- 
essary delay. 



THE PRESIDENTS MESSAGE 35 

When Jefferson came into office he had no 

facility in public speaking, and he, therefore, 

preferred to send written messages, and that 

had been the practise down to the present 

1 — 
administration, when j President Wilson has 

introduced the custom of a personal address 
to both housesj I think the innovation is a 
good one. I think it fixes the attention of 
the country on Congress and thus that of 
Congress on the recommendations of the 
President. I cannot refrain from a smile, 
however, when I think of the oratory which 
is lost because Mr. Roosevelt or I did not 
inaugurate such a change. The eloquence 
that would have resounded from the follow- 
ers of Jefferson in denouncing a return to 
royal ceremony and the aping of *'the speech 
from the throne" can be supplied with little 
effort of the imagination. J 

i It is the duty of the President to issue com- 
missions to all officers of the United States. 
This, I think, is the greatest manual duty 
the President has to perform. When you 
consider all the officers in the government 



36 THE PRESIDENCY 

who are entitled to commissions, and the 
amount of correspondence that he has per- 
sonally to sign, you can understand that a 
substantial part of each business day is taken 
up with signatures, and that the shorter the 
name the easier the work. As I was able to 
sign with six or seven letters, I had an ad- 
vantage. In Washington's day, and later, 
all the letters patent for land and inventions 
had to be signed by the President, but, for- 
tunately for his more recent successors. Con- 
gress has authorized the President to desig- 
nate some one else to perform this duty. I 
don't suppose Congress could relieve him as 
to commissions in view of the mandatory 
language of the Constitution. 

The question of commissions seems a sim- 
ple and formal one, and yet out of them came 
a great case, Marbury vs, Madison. The 
question presented in it was whether in an 
original suit in mandamus, brought under an 
act of Congress authorizing such a suit in 
the Supreme Court of the United States, a 
writ should issue on the appHcation of Mar- 



THE PRESIDENT AND COMMISSIONS 37 

bury to compel Madison, then secretary of 
state, to deliver him his commission as justice 
of the peace. Marbury had been appointed 
and confirmed a justice of the peace for five 
years in the District of Columbia. His com- 
mission had been signed by President Adams 
and delivered to John Marshall, his then 
secretary of state, just before the end of Mr. 
Adams's term. Mr. Marshall had left the 
commission with his successor, Mr. Madison. 
The judgment of the court was that, as the 
Constitution gave the Supreme Court only 
appellate jurisdiction in such a case, Congress 
had no power to pass the act which gave it 
original jurisdiction in this case, and that, fol- 
lowing the fundamental law, the court was 
bound to ignore the act as null, to refuse to 
take the jurisdiction, and to dismiss the pe- 
tition. The conclusion involved the princi- 
ple of transcendent organic importance that 
makes Marbury vs, Madison the greatest 
judgment ever rendered by the court. 

It asserted the power and duty of the court, 
in litigated cases before it necessarily involv- 



SS THE PRESIDENCY 

ing the question, to declare an act of Con- 
gress which was in conflict with the Con- 
stitution to be null. But the chief justice 
was not content with this, and insisted on 
investigating the merits of the case, juris- 
diction of which the court must decKne to 
take. He found that it was the ministerial 
duty of the secretary of state under the facts 
to deliver the commission to Marbury, and 
that if the court had had jurisdiction it would 
have been a case for a mandamus. 

In my early days in Washington, when 
I was solicitor-general, I had as an associate 
Assistant Attorney-General Maury. Born in 
Washington of a Virginian family, his father 
was mayor of Washington when Washington 
had a mayor. In the South more than in 
the North, because they are more homoge- 
neous people, traditions are preserved, espe- 
cially among lawyers and politicians. He told 
me of a family tradition that Marshall, who 
was acting as secretary of state as Adams 
retired, even after he had been appointed, 
confirmed, and commissioned as chief justice, 



TEE PRESIDENT AND COMMISSIONS 39 

turned over the ofEce of secretary of state 
to Madison. It was just after the new cir- 
cuit judges appointed by Adams, called the 
"midnight judges," all Federalists, had been 
confirmed and commissioned. Madison was 
strenuous in gaining possession of the State 
Department. Mr. Marshall is reported to 
have said that, so eager was Mr. Madison to 
take possession of all there was in the State 
Department, he felicitated himself that he 
got away without losing his hat. The "mid- 
night judges'' were eHminated by Jefferson's 
Congress through a repeal of the bill creating 
the court. The validity of this action was 
questioned, and fear that the Supreme Court 
might hold it invalid led to an adjournment 
of the court for a year by Congress. When 
the court met after its long adjournment, the 
chief justice could not resist thus going out 
of his judicial way to take a shot at Jeffer- 
son, a course which Jefferson did not fail 
to animadvert upon in his usual epistolary 
method. Though unnecessary to the de- 
cision, the principle of law laid down by 



40 THE PRESIDENCY 

Marshall as to the right of a court to man- 
damus the head of a department to do a 
ministerial duty has been followed by the 
Supreme Court in several cases, and the pres- 
ent executive practise as to when a com- 
mission is irrevocable is in accord with his 
opinion. 

The power to convene Congress in extraor- 
dinary session, and the power to adjourn 
Congress when the houses disagree as to the 
adjournment, is given in one clause, which 
reads as follows: 

He may on extraordinary occasions convene both 
houses or either of them, and in case of disagreement 
between them with respect to the time of adjournment, 
he may adjourn them to such time as he shall think 
proper. 

When I convened Congress in extra session 
to pass the reciprocity bill, the leaders of 
the Democratic majority of the house were 
very fearful that the Senate might attempt 
to adjourn after the reciprocity bill was 
passed and that the house might not have 



CONTROL OF CONGRESSIONAL SESSIONS 41 

the opportunity of passing some political 
measures for political use in the next elec- 
tion. So they came to me to know whether 
I would exercise the power of adjourning the 
houses under those conditions. It had been 
reported that that was my plan. I had 
never thought of it, and was able to assure 
them that I had not thought of it and did 
not intend to exercise the power. I observe 
in the recent controversy as to the adjourn- 
ment of Congress that some persons appealed 
to the President to adjourn this Congress, 
that is, to exercise what his political oppo- 
nents, in the same old way, would have 
called the royal prerogative of proroguing 
Congress. In my examination of the clause, 
I was inclined to think at the time that the 
power of adjournment of the President was 
probably limited to the adjournment of an 
extra session of Congress, but, as the question 
never arose, I did not give it full considera- 
tion. As I read it now, I am inclined to 
think that the power of adjournment is not 
limited to that of an extraordinary session, 



42 THE PRESIDENCY 

and, therefore, that in the present case Pres- 
ident Wilson might, although the session is 
a regular session, have adjourned Congress. 
So far as I know, the power has never been 
exercised. 

The constitutional functions of the Presi- 
dent seem very broad, and certainly they 
are, but when many speak of the enormous 
power of a President they have in mind 
that what the President does goes, like kiss- 
ing, by favor. Now, I beg of you, gentle- 
men, to believe that the presidency offers 
but few opportunities for discretion of that 
sort. The responsibility of the office is so 
heavy, the earnest desire that every man who 
fills the place has to deserve the approval of 
his countrymen by doing the thing that is 
best for the country is so strong, and the 
fear of just popular criticism is so control- 
ling that it is difficult for one who has been 
through four years of it to remember many 
personal favors that he was able to confer. 
There are certain political obligations that 



A PERSONAL WORD 43 

the custom of a party requires the Presi- 
dent to discharge on the recommendation 
of senators and congressmen and men who 
have had the conduct of the pohtical cam- 
paign in which he was successful. I hope 
that that kind of obHgation will be reduced 
to its lowest terms by a change of the law. 
But I refer now to that kind of power that 
your imagination clothes the President and 
all rulers with, to gratify one man and hu- 
miliate another and punish a third, in order 
to satisfy the power, the whim, or the ven- 
geance of the man in power. That does not 
exist, and the truth is that, great as his 
powers are, when a President comes to ex- 
ercise them he is much more concerned with 
the Hmitations upon them, to see that he 
does not exceed them, than he is affected, 
like little Jack Horner, by personal gratifi- 
cation over the big things he can do. 

The President is given a house to live in, 
a very comfortable, homelike house. In all 
the world, I venture to say, there is no more 
appropriate official residence for a chief exec- 



44 TEE PRESIDENCY 

utive, nor one better adapted to the simple, 
democratic tastes of the American people, 
than the White House at Washington. It 
is dignified, it is beautiful, it is comfortable, 
it offers an opportunity for proper entertain- 
ment of the President's guests, but, as com- 
pared with the many palaces of Europe, it 
is much less extensive and much less ornate, 
and yet it is quite enough to surround him 
with that comfort and freedom from intru- 
sion that the chief executive ought to have 
while he is executive. 

There is an impression that the President 
cannot leave the country and that the law 
forbids. This is not true. The only pro- 
vision of law which bears on the subject at 
all is that constitutional paragraph which 
provides that the Vice-President shall take 
his place when the President is disabled from 
performing his duties. Now, if the Presi- 
dent is out of the country at a point where 
he cannot discharge the necessary func- 
tions that are imposed on him, such disa- 
bility might arise; but the communication 



THE PRESIDENT AND TRAVEL 45 

by telegraph, wireless, and by telephone is 
now so good that it would be difficult for a 
President to go anywhere and not be able 
to keep his subordinates in constant informa- 
tion as to his whereabouts and his wishes. 
As a matter of fact, Presidents do not leave 
the country very often. Occasionally it 
seems in the public interest that he should. 
President Roosevelt visited the Canal Zone 
for the purpose of seeing what work was 
being done on the canal and giving a zest 
to that work by personal contact with those 
who were engaged in it. I did the same 
thing later on, travelling, as he did, on the 
deck of a government vessel, which is, tech- 
nically, the soil of the United States. The 
Zone is the soil of the United States. He 
was not out of the jurisdiction of the United 
States except for a few hours. He went into 
the city of Panama, as I did, and dined with 
the President of the Panamanian Republic. 
So, too, I dined with President Diaz at Juarez, 
in Mexico, just across the border from El 
Paso, but nobody was heard to say that in 



46 THE PRESIDENCY 

any of these visits we had disabled ourselves 
from performing our constitutional and stat- 
utory functions. 

The assassination of three Presidents has 
led Congress to provide that the chief of the 
secret service shall furnish protection to the 
President as he moves about, either in Wash- 
ington or in the country at large. I pre- 
sume that experience shows this to be nec- 
essary. While President, I never was con- 
scious of any personal anxiety while in large 
crowds, and I have been in many of them. 
Yet the record of assaults upon Presidents 
is such that Congress would be quite derelict 
if it disregarded them. It is a great burden 
on the President. He never can go any- 
where that he does not have to inflict upon 
those whom he wishes to see the burden of 
the presence of a body-guard, and it is a 
little difficult to get away from the feeling 
that one is under surveillance himself rather 
than being protected from somebody else. 
The secret-service men are level-headed, ex- 
perienced, and of good manners, and they 



PROTECTION OF THE PRESIDENT 47 

are wise in their methods, and they are most 
expert in detecting those from whom danger 
is most to be expected. I mean the par- 
tially demented and cranks. If a person is 
determined to kill a President, and is will- 
ing to give up his life for it, no such protec- 
tion will save him^ But such persons are 
very rare. The worst danger is from those 
who have lost* part or all of their reason 
and whom the presence of a President in the 
community excites. I may be mistaken, but 
it seems to me that with the experts that we 
now have, and the system that is now pur- 
sued, the assassination of President McKinley 
at Buffalo might possibly have been avoided. 
The presence of the assassin with a revolver 
under his handkerchief would now be de- 
tected long before he could get within range 
of the object of his perverted purpose. 

The President so fully represents the 
party that secures political power by its 
promises to the people, and the whole gov- 
ernment is so identified in the minds of the 
people with his personality, that they make 



48 THE PRESIDENCY 

him responsible for all the sins of omission 
and of commission of society at large. This 
would be ludicrous if it did not have some- 
times serious results. The President can- 
not make clouds to rain, he cannot make the 
corn to grow, he cannot make business to 
be good, although when these things do oc- 
cur parties do claim some credit for the good 
things that have happened in this way. He 
has no power over State legislation, which 
covers a very wide field and which is in 
many respects closer to the happiness of the 
people than is the federal government. But 
the federal power has expanded so much in 
volume with the growth of interstate com- 
merce and in the discharge of other national 
functions that there is a disposition on the 
part of many, even of some who ought to 
know better, to urge that because in their 
judgment States have not shown themselves 
as active as they ought to be in suppressing 
evils and accomplishing good, this fact ought 
to give the United States Government addi- 
tional authority, and they seem to contend 



SCOPE OF EXECUTIVE AUTHORITY 49 

that the President and Congress should as- 
sume such new functions. Of course, this 
would break up our whole federal system. 
The importance of that system is frequently 
misunderstood. Its essence is in the giving 
through the States local control to the people 
over their local affairs, and confining national 
and general subjects to the direction of the 
national government. Our experience with 
the administration of the public lands, with 
the control of our national mineral wealth, 
with the irrigation system of arid lands which 
we have undertaken, and with the disposition 
of the many sources of water-power owned 
by the United States, all show that it is 
exceedingly difficult for the central govern- 
ment to administer what in their nature are 
local matters and put into force a national 
policy that may often be at variance with 
the local view. Such a centralized system of 
government, in which the President and Con- 
gress regulated the door-steps of the people 
of this country, would break up the Union 
in a short time, and those who, therefore. 



so TEE PRESIDENCY 

lightly call for the extension of the power of 
the federal government really don't under- 
stand the dangerous proposition that they 
are urging. 

Then there is a class of people that think 
that the government ought to do everything, 
ought to regulate everybody and every- 
thing — that is, to regulate other people, not 
themselves — and these political philosophers 
visit the President with responsibility for 
everything that is done and that is not 
done. If poverty prevails where, in their 
judgment, it should not prevail, then the 
President is responsible. If other people 
are richer than they ought to be, the Presi- 
dent is responsible. While the President's 
powers are broad, he cannot do everything. 
The lines of his jurisdiction are as fixed as 
a written constitution can make them. He 
has tremendous responsibilities. He is doing 
the best he can. And while we may differ 
with him in judgment, while we may think 
he does not bring the greatest foresight to 
his task, that he may select poor instruments 



THE REPRESENTATIVE OF THE PEOPLE 51 

for his assistants, we must remember that 
he is the head of our government, that he 
represents our nationality and our country, 
and that it is our duty as citizens and pa- 
triots to uphold his hands, to give him credit 
for a high sense of duty and a conscientious 
discharge of it. High ideals and disciplined 
intelligence, as a great university like this 
inspires, impose on us a special responsibil- 
ity as gentlemen and Americans to conduct 
ourselves as friends of constituted authority, 
as supporters of those upon whom the people 
have conferred leadership, and as respecters 
of their learning, experience, and high pa- 
triotic purpose. 

They should make impossible a flippant 
want of respect for the office the President 
holds, or of himself as its occupant, because 
it was the American people who chose him, 
and for the time being he is the personal 
embodiment and representative of their dig- 
nity and majesty. 



II 



One of the great functions of the execu- 
tive which, in a practical way, gives him 
more personal power than any other con- 
ferred on him is that of appointments to 
office. It is a power that fixes his responsi- 
bility for the whole federal government, 
which maintains a personal presence, so to 
speak, in every local community throughout 
the vast stretch of national jurisdiction, by 
the activities of nearly six hundred thousand 
civil and military servants. In the days be- 
fore the civil-service law a sense of obliga- 
tion to the President for the places held pro- 
duced a political loyalty in civil employees 
as presidential henchmen. In those halcyon 
times even the humblest churchman or jan- 
itor felt a throb of deep personal interest in 
the political life of the President. 

Ambassadors, public ministers, consuls, 
judges of the Supreme Court, and other offi- 

52 



POWER OF APPOINTMENT $3 

cers of the United States whose appoint- 
ment is not otherwise provided for, are to 
be appointed by the President, with the ad- 
vice and consent of the Senate. Congress 
is permitted to vest the appointment of in- 
ferior officers in the President alone, in the 
courts of law, or in the heads of departments. 
Heads of departments could hardly be called 
inferior officers, and the language of the 
Constitution leaves it doubtful whether Con- 
gress could give the selection of his cabinet 
to the President without the confirmation 
by the Senate. The question will not trouble 
us, for the Senate is never likely to consent 
to waive its present right to pass upon the 
President's choice of his official family. 

It was settled as long ago as the first Con- 
gress, at the instance of Madison, then in 
the Senate, and by the deciding vote of John 
Adams, then Vice-President, that the power 
of removal was incident to the power of ap- 
pointment, and that the advice and consent 
of the Senate was not necessary to make the 
removal effective. Congress sought to re- 



54 THE PRESIDENCY 

verse this principle of long standing by the 
Tenure of Office Act in Andrew Johnson's 
time. Its first section continued a person 
in an office in which he had been confirmed 
by the Senate until the appointment and 
qualification of his successor, and the act 
further especially provided that a head of a 
department should hold his office during the 
term of the President who appointed him, 
and should be subject to removal only by 
consent of the Senate. This grew out of Mr. 
Johnson's removal of Mr. Stanton from the 
war office. The act was the result of par- 
tisan anger against Mr. Johnson. Much of 
it was soon repealed at President Grant's 
request. It never came before the courts di- 
rectly in such a way as to invoke a decision 
on its validity, but there are plain intima- 
tions in the opinion of the Supreme Court 
that Congress exceeded its legislative dis- 
cretion in the act. 

The effect of the power of appointment 
upon the President's prestige and control in 
Congress is shown in the gradual impairment 



POWER OF APPOINTMENT SS 

of his influence with members of Congress as 
his term lengthens and the oflfices that he 
has to fill become fewer in number. This is 
true of the most popular of Presidents. 

Appointments, except to the more impor- 
tant offices, ought to be in some practical 
way removed from the presidential duties. 
The President should not be required to 
give his time to the selection of any ex- 
cept the judges of the courts, the heads 
of departments, the political under or as- 
sistant secretaries in each department, the 
ambassadors, public ministers, general of- 
ficers in the army, and the flag-officers in 
the navy. This could be done by putting 
all other ofl&ces into the classified service, 
under the present civil-service law. An ap- 
pointment subject to confirmation by the 
Senate cannot, in the nature of things, be put 
in the classified service. The law, therefore, 
should enable the President to fill all other 
offices without the advice and consent of 
the Senate, and then he could classify them 
all — the merit system could be introduced 



56' THE PRESIDENCY 

in appointments and promotions. Thus all 
the local officers throughout the country — 
the postmasters, the collectors of internal 
revenue, the collectors' of customs, and all 
their subordinates — could be given perma- 
nent tenure, appointed and promoted after 
examination and upon proved efficiency. 

Any discussion of the executive function 
of appointments would be lacking which did 
not make some reference to solemn argu- 
ments of solemn senators which take up so 
many pages of that solemn publication the 
Congressional Record in the effort to enlarge 
the meaning of the words-*" advice and con*- 
sent" of the Senate, used in describing the 
part the Senate plays in the matter of ap- 
pointment and in treaty-making. 

The usual contention is that these words 
require that the President should always, 
before making a nomination or negotiating 
a treaty, consult the Senate, and this in the 
face of a hundred years of a general practise 
to the contrary. To use Skipper Jack Buns- 
by's language, as reported in Dombey and 



CONSENT OF THE SENATE 57 

Son, "the bearings of this observation is in 
the application on it." From this general 
construction of *' advice and consent" it is 
easy for one imbued with the sacred awful- 
ness of the Senate's functions in govern- 
ment to follow a course of reasoning which 
leads to the conclusion that a Republican 
President, under the Constitution and the 
courtesy of the Senate, must consult the 
Republican senators from a State before 
making appointments in that State, but that 
no such constitutional obHgation is upon 
him in respect to Democratic senators. This 
is not humorous, much as it may seem to 
be. A senator asked me to appoint two 
men, one to be district attorney and the 
other his assistant in his State, and requested 
that they be allowed to divide the aggregate 
salaries of the two offices equally. When I 
declined to do so he requested the appoint- 
ment of one of the two — to the chief office. 
I did not think him competent, upon inves- 
tigation, and was confirmed in this opinion 
by his willingness to accept the office under 



58 THE PRESIDENCY 

the arrangement first suggested. I nomi- 
nated another lawyer of much higher capac- 
ity and standing, also a political supporter 
of the senator. He nevertheless fought the 
nomination on the ground that with devilish 
ingenuity I had sought to embarrass him, 
and contended before the judiciary committee 
that he did it on principle. While he ad- 
mitted the competency and high character 
of my nominee and his proper political 
views, he argued that as his advice to me 
had been different, and as he in such local 
matters represented the Senate, the appoint- 
ment should not be confirmed, in his view of 
the constitutional function of the Senate in 
appointments. 

I cannot exaggerate the waste of the Pres- 
ident's time and the consumption of his 
nervous vitality involved in congressional 
intercession as to local appointments. As 
long as these remain political the expense 
of the administration of the oflSices will be 
largely more than it need be. I venture 
the assertion, after long experience, that, if 



THE CIVIL SERVICE 59 

the important local offices all over the coun- 
try under the federal government were put 
in the classified service, an expert examina- 
tion of those offices would satisfy Congress 
and the appointing power that the assistant 
postmasters, the assistant collectors of in- 
ternal revenue, and the assistant collectors 
of customs could run the offices better than 
they are now run with a political chief in 
each, and that the only change needed would 
be to increase, by a small percentage, the 
salaries of the assistants. In this way nearly 
the whole of the salaries of the present polit- 
ical chiefs all over the country in these local 
offices could be saved to the government. 
Annually for four years I recommended that 
the Congress change the method of appoint- 
ing the postmasters, collectors of internal 
revenue, and collectors of customs by re- 
moving the necessity for confirmation by the 
Senate, promising that if this were done I 
would put all these officers under the classi- 
fied service. But my urgent recommenda- 
tions fell upon deaf ears. No President, so 



6o THE PRESIDENCY 

far as I know, has been able to break away 
from this custom. There have been nota- 
ble instances, as in the case of the issue be- 
tween President Garfield and Senator Conk- 
ling, where the President asserted his right 
to act without the recommendation of the 
senator in a New York appointment. In the 
Garfield-Conkling controversy it was not a 
question of civil-service reform. The issue 
was political. It was only a question whether 
a Conkling man should be replaced by a 
Blaine man, and it was to repay a political 
debt of Mr. Blaine and Mr. Garfield that 
Judge Robertson was appointed. Mr. Gar- 
field did not change the custom except in 
this case. Congressmen and senators believe 
that by this custom they can maintain a 
local political organization which will assist 
them to be re-elected. It usually hurts more 
than it helps the particular user in the long 
run; but it does help to strengthen local 
machines and bosses. If the persons and 
parties contending for the abolition of bosses 
and the suppression of machines in Con- 



POWER OF APPOINTMENT 61 

gress would show the faith and sincerity 
that ought to be in them, they could pro- 
mote the cause which they so loudly pro- 
claim most effectively by passing the law 
to which I refer. 

The law puts the appointment of clerks 
of courts in the judges. Judges are men, 
and when they are given executive or quasi- 
political functions — ^that is, when they exer- 
cise patronage — they have proven to be quite 
like other men. Clerks appointed in federal 
districts become part of the family of the 
judge. They take pride in the earnings of 
their offices, and they are prone to over- 
charges in fees. The favor they enjoy with 
the judge as part of his family has, I am 
sorry to say, led to abuses, and the reluctance 
that some judges have to call them to strict 
account in the management of their offices 
is too well known to the head of the depart- 
ment of justice and to his inspectors whose 
duty it is to examine their accounts. When 
I was in office I recommended that the Pres- 
ident have the power of removal of such 



62 THE PRESIDENCY 

clerks for cause upon the report of the at- 
torney-general, but no such action was taken, 
although there were a number of flagrant 
cases presented justifying the recommenda- 
tion. With nearly one hundred clerks of 
courts, and with a larger number of deputies 
spread all over the United States, the influ- 
ence that can be used with members of Con- 
gress in a matter that is not acutely polit- 
ical only those who have had occasion to 
meet it can fully understand. In order to 
protect the judges against their unjudicial 
selves in extrajudicial matters, I would re- 
move all patronage from courts. 

I would vest the appointment of receivers 
in equity to take charge of railroads by the 
federal court in the Interstate Commerce 
Commission. They could be made, of course, 
quite as subject to the direction of the court, 
though appointed by another authority, as 
if appointed by the court itself. I know 
whereof I speak as to the wisdom of such a 
change. For eight years I acted as a cir- 
cuit judge, and during much of that time I 



EXECUTION OF THE LAWS 63 

was engaged, through receivers, in operating 
many thousands of miles of railroads within 
my circuit. The executive power the court 
is thus called upon to exercise is not good for 
the court, creates antagonisms that ought 
to be avoided, and interferes with the proper 
discharge of normal judicial functions. 

The President takes an oath that he will 
execute the office of President and preserve, 
protect, and defend the Constitution of the 
United States, and it is made his especial 
duty to take care that the laws be faithfully 
executed. This is the widest power he has. 
In carrying out, through the praper depart- 
ment and the proper subordinate officers, 
the direction of the statutes of Congress, his 
course is usually clear. His duties thus di- 
rected flower out in such a way that few 
people understand their extent until they 
study the practical working of our govern- 
ment organization. Many of these duties 
are quasi-legislative and quasi-judicial. In 
order to make the statutes practical. Congress 



64 THE PRESIDENCY 

often finds itself obliged to confer upon the 
particular subordinate of the President who 
is to carry out the law the power to make 
rules and regulations under it which are leg- 
islative in their nature. These regulations 
are made that those who are affected by 
its terms, both government officers and the 
public, may know how they can comply with 
it. If you would know the importance, dif- 
ficulty, and wide discretion involved in this 
task, I commend you to the present income- 
tax law and the main strength that has had 
to be used in formulating workable regula- 
tions for its operation and enforcement. 

This duty of preparing regulations for 
the enforcement of the statutes involves 
their construction. Statutory construction 
is practically one of the greatest of execu- 
tive powers. Of course ultimately where the 
statute affects private right it may come 
before the courts; but there are many stat- 
utes that do not affect private right in such 
a way that they can be made the subject of 
litigation. 



EXECUTION OF THE LAWS 65 

Then congressional legislation frequently 
imposes pecuniary liabilities as upon tax- 
payers. After taxes are collected, executive 
tribunals have to be formed to pass on the 
claims for the return of taxes claimed to be 
illegally collected. 

Taxes must be collected according to due 
process of law, but Congress is not required 
to furnish an opportunity for judicial con- 
struction of the tax laws. It may vest final 
decision in any executive officer. It has not 
generally done this, but has ultimately given 
an opportunity for the taxpayer to appeal 
to the federal courts. At present most cus- 
toms litigation ends in a special court of 
final customs appeals, which is a real court. 

Congressional legislation often confers on 
those who comply with its conditions prop- 
erty rights or valuable privileges. Tribunals, 
executive or judicial, are given jurisdiction 
to pass, upon claims seeking such rights or 
privileges. The application for a patent for 
an invention is made to the commissioner of 
patents or a subordinate, but provision is 



66 THE PRESIDENCY 

made for an appeal from his decision to the 
secretary of the interior and then to a court 
of last resort. Soldiers' pensions, however, 
and patents under the homestead and other 
general land laws for government lands are 
granted after a hearing before an executive 
tribunal. Under the immigration acts are 
officers exercising quasi-judicial power, sub- 
ject to review by the head of the department 
only, for the purpose of determining the 
eligibility of immigrants to enter this coun- 
try or the necessity for deportation of those 
who have illegally entered. Consider the 
drawing of money from the national treasury 
under an appropriation act. The drawing 
of the warrant must be approved by the 
comptroller of the treasury. It is for him 
to say whether, under the statute, the war- 
rant is lawful and the money can be drawn. 
He is an appointee of the President, and if 
the President does not like him as a comp- 
troller, and his decisions, he can remove him 
and put in another one; but the President 
cannot control or revise his decisions. His 



EXECUTION OF THE LAWS 67 

work is like the other work that I have 
referred to, quasi-judicial. If the claim is 
rejected by him, the claimant may usually 
carry his case into the Court of Claims; but 
if he decides for the claimant, the public and 
those interested in maintaining the side of 
the government have no appeal and his de- 
cision is final. 

Originally claims against the government 
could not be heard in court. The govern- 
ment did not permit itself to be sued; the 
claims were passed upon by executive offi- 
cers and were referred to Congress for its 
consideration and action by appropriation. 
Now a Court of Claims has been estabHshed, 
with jurisdiction to hear and adjudge suits 
against the United States based on contracts, 
express or implied, and in a narrow class 
of torts. Judgments in the court of claims 
are certified to Congress for payment and 
are subject to review by the Supreme Court 
of the United States. This development 
from the decision of the executive officer upon 
claims dependent on government concession 



68 THE PRESIDENCY 

or grant into, first, an executive tribunal and, 
finally, into a real judicial hearing before a 
court is only an instance of the natural tend- 
ency of the Anglo-Saxon to make a hearing 
as fair and equitable as is consistent with the 
effective operation of the government pur- 
pose. It was seen originally in the growth 
of the Court of Chancery from the arbi- 
trary discretion of the Lord Keeper in deal- 
ing with the litigants at common law and 
ameliorating its rigidity. The creation of 
many executive commissions has given rise 
to qualms in the minds of some lest we are 
departing from those forms of proceeding 
intended to protect individual right. It 
may well be pointed out that the necessary 
trend in all such executive tribunals is to- 
ward a due judicial process. 

The express duties defined in the statute 
and distributed to the departments and to 
the various appointees of the President cre- 
ate a great permanent organization over 
which he can exercise only a very general 
supervision. Under the civil-service laws. 



THE EFFECT OF CIVIL SERVICE 69 

inadequate as they are in some respects, the 
continuity of the government in the depart- 
ments at Washington is fairly well settled 
and is little changed from administration to 
administration. It would be difficult, if the 
President chose to exercise the power he 
has, to impose his personality minutely on 
the going government. He can insist upon 
greater economy. He can infuse a spirit in 
the service by making plain his earnest de- 
sire for greater efficiency. While he is the 
head of this permanent structure, however, 
it seems to have an impersonal entity in- 
dependent of him which in some degree 
modifies his responsibility for its operation. 
There are in the civil service in Washing- 
ton chiefs of divisions and assistant chiefs 
of bureaus who have been there for decades. 
They are loyal to the government and not 
especially beholden to any one President. 
They are as important in the army of civil 
servants as the old non-commissioned offi- 
cers are in a military force. They have far 
greater experience than the heads of their 



70 THE PRESIDENCY 

departments and bureaus who change every 
presidential term. Their Hfelong fidehty 
and efficiency are not rewarded by notices 
in head-Knes. They have true philosoph}^, 
and are content with small salaries, perma- 
nent tenure, the consciousness of duty well 
done, and the flattering dependence upon 
them that their immediate superiors feel. 

Outside of this normal operation of the 
regular vast machine of government, in many 
respects automatic, of whose workings he 
hears little except when there is somewhere 
a break in it or a palpable need of repair, 
the President's chief concern is in following 
a path not so clearly beaten. 

The laws that he must take care shall 
be faithfully executed are not confined to 
acts of Congress. That body frequently fails 
to pass laws which are needed to make the 
course of the executive plain in cases of gov- 
ernmental necessity, and he has often been 
obHged to spell out a constitutional or legal 
obHgation and authority to meet the neces- 
sity. 



JUDICIAL FUNCTIONS 71 

The treaties of the United States with 
other countries, under the Constitution, are 
laws of the United States, having effect as 
municipal law, in respect of those of their 
provisions that were intended so to operate, 
and are in form appropriate to such opera- 
tion. 

By Article XXVII of Jay's Treaty with 
England, it was agreed 

that His Majesty and the United States, on mutual 
requisitions, by them respectively, or by their respect- 
ive ministers or officers authorized to make the same, 
will deliver up to justice all persons who, being charged 
with murder or forgery, committed within the juris- 
diction of either, shall seek an asylum within any of 
the countries of the other, provided that this shall 
only be done on such evidence of criminality as, ac- 
cording to the laws of the place where the fugitive or 
person so charged shall be found, would justify his 
apprehension and commitment for trial if the offense 
had there been committed. 

Congress, during Mr. Adams's administra- 
tion, passed no law to carry out this article 
and made no provision, as it has done since 
in all such cases, for any examination of the 



72 THE PRESIDENCY 

accused before a court as the basis for grant- 
ing a warrant of extradition. A subject of 
Great Britain committed a murder on the 
high seas on a British naval ship and then 
escaped to South CaroHna. He was there 
apprehended and brought before the fed- 
eral court for commitment on the charge of 
murder and piracy against the statutes of 
the United States. President Adams wrote 
to the examining judge that he thought 
there was no jurisdiction over the offense in 
a court of the United States; that the crime 
as charged had been committed within the 
jurisdiction of Great Britain and was within 
the treaty, and that if the judge found the 
evidence of the crime was sufficient he, the 
President, would order the prisoner to be 
turned over to the British agent. The judge 
answered that he agreed with the President 
there was no jurisdiction in the federal 
court and that the evidence was sufficient 
for commitment on the charge. The pris- 
oner was extradited on the President's war- 
rant and was tried and executed for his of- 



JUDICIAL FUNCTIONS 73 

fense. The matter was made the subject 
of resolutions in Congress at the instance of 
Edward Livingston, who was then a congress- 
man from New York and a poHtical opponent 
of President Adams. These resolutions re- 
cited that the action of the President was an 
interference with the judicial process, and 
that there was no statute authorizing an 
order of extradition by the President, and 
therefore his act was a usurpation of personal 
rights. John Marshall was then a member 
of the House of Representatives, and he 
made an argument which is reported in the 
first appendix to the fifth Wheaton. The 
argument has been pronounced by the Su- 
preme Court in a judgment of Mr. Justice 
Gray in Fong Yue Ting vs. U. S., 149 U. S., 
698, to be masterly and conclusive, to es- 
tablish that, under the President's constitu- 
tional obligation to take care that the laws 
be executed, the treaty obligation of the 
United States was such *'a law." If you 
read the argument you will agree with the 
court and Justice Gray. 



74 THE PRESIDENCY 

\ A similar instance came within my own 
official cognizance when I was secretary of 
war. In the absence of the secretary of 
state, Mr. Root, President Roosevelt sent 
me to Cuba, with Assistant Secretary of State 
Bacon, to see if we could compose a revolu- 
tion against the government, of which Pres- 
ident Palma was the head in that republic. 
We found a revolution flagrant, and we felt 
that intervention was necessary, and the 
question was whether the President, without 
action of Congress, could use the army and 
navy to intervene under the so-called Piatt 
amendment of the treaty between Cuba and 
the United States, which reads in part as 
follows : 

The government of Cuba consents that the United 
States may exercise the right to intervene for the 
preservation of Cuban independence and the main- 
tenance of a government adequate for the protection 
of Hfe, property, and individual liberty. 

I advised the President that this treaty 
pro tanto extended the jurisdiction of the 



JUDICIAL FUNCTIONS 75 

United States to maintain law and order 
over Cuba in case of threatened insurrec- 
tion and of danger of life, property, and 
individual liberty, and that under his duty 
to take care that the laws be executed this 
was "a law" and his power to see that it 
was executed was clear. 

Events followed quickly our investigation 
and recommendations, and I was obliged, 
under the authority of President Roosevelt, 
to summon the army and navy, and to 
institute a provisional government, which 
lasted nearly two years, restored order, and 
provided a fair election law, secured a fair 
election, and then turned the government 
over to the officers elect'ed under the con- 
stitution of Cuba. The rightfulness of the 
President's act under this clause of the Cuban 
treaty was as clear as that of the President's 
act under Jay's Treaty, in the absence of 
congressional legislation. There were some 
mutterings by senators that under the Piatt 
amendment Congress only could decide to 
take action. However, the matter never 



76 THE PRESIDENCY 

reached the adoption of a resolution, Con- 
gress appropriated the money needed to 

* meet the extraordinary military and naval 
expenditures required, and recognized the 
provisional government in Cuba in such a 
way as to make the course taken a real 

\ precedent. 

Another instance of "a law" not found 
in an act of Congress or in a treaty is the 
Neagle case, 135 U. S., i, with which you 
are doubtless famiUar. The case was an ap- 
peal from an order of the circuit court of 
the United States discharging Neagle from 
the custody of a State court of California, 
under a writ of habeas corpus. Neagle had 
been indicted in a State court for murder for 
shooting and killing Terry. His petition set 
forth that he did this as a deputy United 
States marshal, in pursuance of "a law'' of 
the United States, and that under the federal 
habeas-corpus statute, which secured the 
writ to any one in custody for an act in pur- 
suance of "a law" of the United States, he 
was entitled to release. The f*cts were these : 



THE NEAGLE CASE 77 

Mr. Justice Field, of the Supreme Court of 
the United States, while on the circuit, had 
to consider litigation in which Terry's wife 
was interested and had rendered an adverse 
decision. Terry was his wife's counsel. For 
a- demonstration of violence in the court- 
room, Mr. Justice Field sent Judge and 
Mrs. Terry to jail for contempt. This pro- 
voked threats by both Terry and his wife 
against Field's life. Field, after having held 
the circuit court at Los Angeles, was on his 
way to hold court at San Francisco, and was 
seated at breakfast in the railway station at 
Lath rep when Terry and his wife entered. 
Seeing Field, Mrs. Terry went back to her 
sleeping-car to get a revolver, while Terry 
approached Field and struck him from be- 
hind as he sat. Field was accompanied by 
Neagle, a deputy marshal, whom the attor- 
ney-general of the United States had in- 
structed to accompany Field for the purpose 
of defending him against the threatened as- 
saults of Terry and his wife. Neagle called 
to Terry that he was a United States offi- 



78 THE PRESIDENCY 

cer, and asked him to desist from his as- 
sault. He refused to do so, and Neagle 
shot and killed him. Terry was known to 
be a man of violent methods, and had killed 
Broderick in a duel before the war. 

There was no act of Congress which au- 
thorized or directed United States marshals 
to accompany United States judges on their 
circuits or to protect them from assault 
while travelling from one court to another. 
The court held that if a United States judge 
is attacked while on his judicial circuit, 
through resentment at that which he has 
done as a judge, the duty of the judge to 
act without fear or favor creates a reciprocal 
legal obligation on the part of the govern- 
ment to protect him. This, it was decided, 
constituted "a law" within the meaning of 
the Habeas-Corpus Act and the Constitution, 
giving authority to the President through 
the attorney-general to do what was done 
in this case. 

Mr. Justice Miller, who decided the case, 
said: 



THE NEAGLE CASE 79 

In the view we take of the Constitution of the United 
States, any obligation inferable from that instrument, 
or any duty of the attorney-general to be derived from 
the general scope of his duties under the laws of the 
United States, is a law within the meaning of this 
phrase. It would be a great reproach to the system of 
government of the United States declared to be within 
its sphere, sovereign and supreme, if there is to be found 
within the domain of its powers no means of protect- 
ing the judges in the conscientious and faithful dis- 
charge of their duties from the malice and hatred of 
those upon whom their judgments may operate un- 
favorably. 

Speaking again of the injunction that the 
President shall take care that the laws be 
faithfully executed, he says: 

Is this duty limited to the enforcement of acts of 
Congress or of treaties of the United States according 
to their express terms, or does it include the rights, 
duties, and obligations growing out of the Constitution 
itself, our international relations, and all the protection 
implied by the nature of the government under the 
Constitution ? 

He then cites the instance of the action 
of a captain of a United States naval vessel 
in compelHng the surrender by an Austrian 



So THE PRESIDENCY 

vessel of Kotza, a Hungarian who had made 
his declaration of intention to become a 
citizen of the United States, as the action of 
the executive power in executing a law of the 
United States. He instances as of the same 
character action by the President in order- 
ing the army and marshals of the United 
States to secure the safety of the mails, and 
to protect public land from trespassers, and 
of the attorney-general, as the agent of the 
President, in bringing suits to set aside fraud- 
ulent conveyances of public lands in the 
interest of the government without express 
statutory authority in any of these cases so 
to do. 

The same principle seems to be exempli- 
fied in Logan against the United States, 144 
U. S., 263-284, in which the question at 
issue was whether a successful combination 
of men to kill a prisoner in the custody of 
the United States marshal was a conspiracy 
to injure or oppress him in the free exercise 
or enjoyment of a right then and there 
secured to him by the Constitution of the 



ENFORCEMENT OF TREATIES 8i 

United States. There is no express declara- 
tion in the Constitution or in any statute 
of a right of a United States prisoner to be 
protected from assault. Mr. Justice Gray, 
in the case cited, says: 

In this case the United States, having the absolute 
right to hold prisoners, have an equal duty to protect 
them while so held against assault or injury from any 
quarter. The existence of that duty on the part of 
the government necessarily implied a corresponding 
right of the prisoners to be so protected, and this right 
of the prisoners is a right secured to them by the Con- 
stitution and laws of the United States. 

One of the defects in our present congres- 
sional legislation with reference to our for- 
eign relations is a failure to denounce as a 
crime against the United States a conspiracy 
to deprive an alien within our jurisdiction 
of rights secured to him in a treaty of the 
United States with the country of which 
he is a subject or citizen. In many of our 
treaties of friendship and amity — indeed, in 
nearly all of them — ^we have agreed with the 
other parties to the treaty that their sub- 



82 THE PRESIDENCY 

jects or citizens being in this country shall 
enjoy protection of life, liberty, and prop- 
erty within the due process of law. The 
Supreme Court has said that Congress has 
the power to denounce such a crime. But 
Congress, through local opposition, has never 
found courage to do so, though it has been 
urged by successive Presidents. Where mob 
violence due to racial prejudice has destroyed 
life or property, the State authority has been 
proven to be wantonly helpless. The secre- 
tary of state, in answering the complaints 
of foreign governments upon this head, has 
been under the humiliating necessity of say- 
ing that, while we made an agreement, we 
have, as a national government, no statutory 
power to comply with it, and all we can do 
is to recommend to the State where the vio- 
lence occurs to institute proceedings in its 
courts to punish it. The question which I 
wish to moot, and with diffidence answer, is 
whether, notwithstanding the failure of Con- 
gress to make such a violation of an aHen's 
treaty rights a federal offense, it is not still 



ENFORCEMENT OF TREATIES 83 

within the power of the President to use the 
army to resist threatened mob violence to 
such aliens, and thus to take care that the 
national obhgation of protection to them is 
faithfully executed. The rioters could not 
be punished as criminal offenders against the 
federal law, but the marshals and the sol- 
diers, on the other hand, could not be made 
criminally liable for any act, even to the 
extent of homicide, in protecting the aliens 
under the President's order, because the fed- 
eral obligation to do so would be a law of 
the United States under the cases cited. 
This is a case of first impression that I com- 
mend to your moot courts for discussion. -. 

Let me give another example of a law not I 
embodied in a statute or treaty which, on 
account of congressional neglect to act, the 
President has had to see executed. By an 
act approved April 28, 1904, the President 
was directed to take possession of and occupy, 
on behalf of the United States, the Canal 
Zone, the dominion over which had been 
acquired under the Hay-Varilla Treaty just 



84 THE PRESIDENCY 

then ratified. The seventh section of that 
act provided that all the military, civil, and 
judicial powers, as well as the power to make 
all rules and regulations necessary for the 
government of the Canal Zone, should be 
vested in such a person and should be exer- 
cised in such a manner as the President 
should direct, until the expiration of the Fifty- 
eighth Congress. The Fifty-eighth Congress 
expired without making provision for future 
government of the Zone. 

I was secretary of war from 1904 to 1908, 
and in charge of the canal work, and the 
question arose as to what was to be done in 
this legislative lapse after the death of the 
Fifty-eighth Congress. I had no hesitation 
in advising the President, and I may add 
that he had no hesitation in accepting the 
advice, that under his duty to take care that 
the laws be faithfully executed, when express 
authority from Congress to continue a going 
government essential to the construction of 
the canal failed, he was justified in main- 
taining the existing government and con- 



COMMANDER-IN-CHIEF 85 

tinuing the status quo. Congress made no 
further provision for the government of the 
Zone for seven years, and by its acquies- 
cence in our course vindicated our view of 
the President's duty. It is true that one dis- 
tinguished congressman, who is now the gov- 
ernor-general of the PhiHppines, rose in his 
place in Congress to denounce our usurpa- 
tion, but except for his lucubration on the 
subject nothing was said in Congress and 
no action was taken. 

The President is the commander-in-chief of 
the army and navy, and of the militia when 
called into the service of the United States. 
Under this he can order the army and navy 
anywhere he will. Of course the instrumen- 
tality which it furnishes gives the Presi- 
dent an opportunity to do things which in- 
volve consequences that it would be quite 
beyond his power under the Constitution 
directly to effect. Under the Constitution 
Congress has the power to declare war, but 
with the army and navy the President can 



86 THE PRESIDENCY 

take action such as to involve the country 
in war and to leave Congress no option but 
to declare it or to recognize its existence. 
Indeed, war as a legal fact, it was decided by 
the Supreme Court in the prize cases, could 
exist by invasion of a foreign enemy, or by 
such an insurrection as occurred during the 
Civil War, without any declaration of war 
by Congress at all, and it was only in the 
case of a war of aggression that the power of 
Congress must be affirmatively asserted to 
estabhsh its legal existence. Of course, what 
constitutes an act of war by the land or naval 
forces of the United States is sometimes a 
nice question of law and fact. It really 
seems to differ with the character of the na- 
tion whose relations with the United States 
are affected. The unstable condition as to 
law and order of some of the Central Ameri- 
can repubhcs creates different rules of in- 
ternational law from those that obtain in 
governments that can be depended upon to 
maintain their own peace and order. It has 
been frequently necessary for the President 



COMMANDER-IN-CHIEF 87 

to direct the landing of naval marines from 
United States vessels in Central America to 
protect the American consulate and Ameri- 
can citizens and their property. He has done 
this under his general power as commander- 
in-chief. It grows out, not of any specific 
act of Congress, but of that obligation, in- 
ferable from the Constitution, of the govern- 
ment to protect the rights of an American 
citizen against foreign aggression, as in the 
Kotza incident cited by Mr. Justice Miller 
in the Neagle case. In practise the use of 
the naval marines for such a purpose has 
become so common that their landing does 
not stir up excitement, as though it were 
anything more than a police measure, whereas 
if troops of the regular army are used for 
such a purpose it is considered an act of 
war. 

Thus, it would be diflScult to explain the 
landing of our army at Vera Cruz by force 
as anything but an act of war, to punish the 
government of Huerta in Mexico for its re- 
fusal to render what the President thought 



88 TEE PRESIDENCY 

a proper apology for a violation of our inter- 
national rights in the unjust arrest of some 
of our sailors. This act was committed be- 
fore authority was given by Congress, but 
the necessary authority had passed one 
house, and was passing another at the time, 
and the question as to the right of the execu- 
tive to take the action without congressional 
authority was avoided by full and immediate 
ratification. 

In Nicaragua, in my administration, an 
insurrection had led to the immurement of 
American citizens by insurrectos and the 
threatened destruction of American property. 
The President of Nicaragua, whom we had 
recognized and received, whose minister we 
had received, called upon the government 
of the United States to protect its own citi- 
zens and their property, because he was un- 
able to render them the protection which 
their treaty rights gave them. This led to 
the landing of marines and quite a campaign, 
which resulted in the maintenance of law 
and order and the elimination of the in- 



COMMANDER-IN-CHIEF 89 

surrectos. This was not an act of war, be- 
cause it was done with the consent of the / 
lawful authorities of the territory where it I 
took place. 

^<A. rider on an appropriation bill in 1875 ^ 
forbade the use of the army as a posse comi- 
tatus by any one unless its use was expressly 
authorized by act of Congress. This pre- 
vented the marshals from calling in the army 
to help them in enforcing the election laws. 
In so far as this might prevent the Presi- 
dent from directing the army to stand by 
the marshal in the enforcement of the law, 
it aroused a very considerable doubt whether 
it was not an undue restriction upon the 
constitutional power of the President to 
use the army to see that the laws are faith- 
fully executed. It was probably not an in- 
vasion of the President's authority, because 
by another statute, passed during the Civil 
War, he has the power, whenever the laws of 
the United States are obstructed, or its au- 
thority set at defiance by insurrection or in- 
vasion, to issue a proclamation and direct 



go THE PRESIDENCY 

the army to remove the obstruction and 
enforce law and order. 

It was under this statute that President 
Cleveland acted when he sent General Miles 
to Chicago to remove the obstruction to 
the passage of the mails and of interstate 
commerce which Debs, at the head of the 
American Railway Union, was effecting by 
violence and other unlawful means. This 
was the case where Governor Altgelt sought 
to keep the army out of IlHnois, on the ground 
that until he or the legislature requested it 
the President had no right to send it into 
the State for the purpose of suppressing dis- 
order. President Cleveland and Attorney- 
General Olney earned the gratitude of all 
lovers of peace and good order by the firm 
stand which they took in this matter, and 
in maintaining what the Supreme Court had 
so often decided, that every foot of land 
within the jurisdiction of the United States, 
whether in a State or in a Territory, or in 
the District of Columbia, is territory of the 
United States upon which the laws of the 



COMMANDER-IN-CHIEF 91 

United States can be executed by the Presi- 
dent by force which he has at his lawful com- 
mand; that there is a peace of the United 
States, a violation of which consists in for- 
cible resistance to its laws. Mr. Cleveland 
did not have to consult Governor Altgelt as 
to whether he should send an army to Illi- 
nois to see that the federal laws were faith- 
fully executed there. The full legality of 
President Cleveland's action in this regard 
was sustained by the unanimous judgment 
of the Supreme Court in the Debs case. 

The Constitution provides that the United 
States shall protect each State against in- 
vasion, and on the application of the legis- 
lature, or of the executive when the legis- 
lature cannot be convened, against domestic 
violence; and an early statute of the United 
States, still in force, provides that on such 
an application the President may use the 
militia of any State, or the regular army, to 
suppress such insurrection. In the case of 
Rhode Island, as between claimants for the 
governorship, the court held that it was 



92 TEE PRESIDENCY 

within the power of the executive conclu- 
sively to determine, so far as that court was 
concerned, who was the governor of the 
State and what was lawful in order that he 
might exercise his duty under the statute, 
a result quite analogous to that which en- 
ables the President to recognize foreign gov- 
ernments and to bind all other departments 
of the government by his recognition. 

There is a far wider exercise of the au- 
thority by the executive in his capacity as 
commander-in-chief than in the cases cited. 
It was exempHfied in and after the Spanish 
War. Before and after the treaty of Paris 
was made with Spain, by which there were 
left in our possession as owners the Phil- 
ippines and Porto Rico, and in our custody 
as trustees for the people of Cuba the island 
of Cuba, we acquired responsibiHties which 
were met by occupation of those islands with 
the army and navy. In the case of Cuba 
this continued from 1898 until 1903, when 
the island was turned over to the Cuban 
republic. In the case of Porto Rico this con- 



COMMANDER-IN-CHIEF 93 

tinued from 1898 until the taking effect of 
the Foraker Act in April, 1900, and in the 
Philippines from August 13, 1898, when we 
took Manila, until March, 1902, when the 
President was expressly given power to es- 
tablish a civil government there. During all 
this interval of congressional silent acquies-- 
cence in the action of the President as com- 
mander-in-chief, he directly, or through his 
agents appointed, exercised all the executive 
power and all the legislative power, and cre- 
ated all the judicial power of government 
in those territories. After suppressing actual 
disorder he created a quasi-civil government, 
and appointed an executive, a civil legisla- 
ture, and civil judges, and became the law- 
giver of ten millions of people for a period 
ranging from two years to four. Now, there 
was nothing new or startling in the principle 
of this temporary enlargement of his execu- 
tive functions. Its novelty was in the great 
volume of power which the circumstances 
thrust on him and the responsibilities and 
the wide discretion which he had to exercise. 



94 TEE PRESIDENCY 

The validity of such action had been recog- 
nized by the Supreme Court in similar cases 
arising after the Mexican War, when wc 
^ took over California and New Mexico. 

The delay of Congress was useful in all 
these cases. In respect to Porto Rico, Con- 
gress probably acted too quickly, for the 
Foraker Act, which provided for its govern- 
ment, was made Hke the usual territorial 
acts in the United States, and it did not 
fit quite the civilization to which it was ap- 
plied in this community of Spanish laws and 
customs. In the PhiHppines, under the wise 
and statesmanHke forecast of Secretary Root, 
the civil government was framed gradually 
in that country to suit the exigencies. Con- 
gress was quite willing to let President 
McKinley handle the difficult problem until 
experience should throw light on the situa- 
tion. When it did act, it ratified everything 
the President had done, and continued the 
government which had been created by the 
commander-in-chief with congressional sanc- 
tion. 



Ill 



The power of the President to grant par- 
dons and reprieves includes not only the 
pardon of a man after conviction, but the 
pardon for a criminal act before conviction 
or even indictment. It also enables him to 
grant a pardon to people of a class, by am- 
nesty. It is one of the most difficult duties 
that the President has to perform. It is left 
to his arbitrary discretion, and the only rule 
that he can follow is that he shall not exer- 
cise it against the public interest. The guilt 
of the man with whose case he is dealing is 
usually admitted, and, even if it is not, the 
judgment of the court settles that fact in 
all but a few cases. The question which the 
President has to decide is whether, under 
peculiar circumstances of hardship, he can 
exercise clemency without destroying the use- 
ful effect of punishment in deterring others 
from committing crimes. The ordinary re- 

95 



96 THE PRESIDENCY 

suit of human punishment is that those near 
to the criminal, or dependent upon him, 
suffer in many cases more than he does, and 
their pitiable condition often furnishes a plea 
for mitigation of the penalty. There is ade- 
quate machinery in the Department of Jus- 
tice to have all cases examined by an assist- 
ant attorney-general, and the cases are briefed 
and brought to the President, with the rec- 
ommendation of the attorney-general, upon 
which he can safely act. It is difficult to 
eliminate altogether fraud and reckless mis- 
representation. It has been a tradition that 
if a man was in articulo mortis, it was mercy 
to allow him to die out of jail and with his 
family. I had two noted cases of this kind, 
in which, after taking the utmost care to see 
that the state of the health of each applicant 
had not been misrepresented, I yielded to 
the applications and granted the pardons. 
One man died and fulfilled his contract. 
The other man is living to-day and appar- 
ently in better health than before he went 
to jail. It has been suggested to me that I 



PARDONS 97 



might have revoked the second pardon on 
account of fraud in obtaining it. I did 
not consider the question seriously because, 
while I directed an investigation, I could 
not find evidence of fraud. Still, it would 
be a novel proceeding to revoke a pardon. 
Though I have not looked into it carefully, 
I much doubt the power. Where orders have 
been made in the courts granting naturali- 
zation, proceedings have been entertained 
to set them aside as fraudulent. The anal- 
ogy is hardly complete between such an order 
and an act of executive grace and clemency 
giving a prisoner freedom, the revocation of 
which must, if it be effective, remand him to 
prison. 

The next power, and the final one which I 
shall discuss, of the enumerated powers in 
the Constitution, is that which the Presi- 
dent exercises over foreign relations. The 
domestic executive power of the entire coun- 
try is divided between the President and the 
governors, the legislative between Congress 



98 THE PRESIDENCY 

and the State legislatures, and the judicial 
between the federal and the State courts. 
In regard to our foreign relations, however, 
there is only one executive power, only one 
legislative power, and only one judicial 
power, all federal. The President receives 
foreign ambassadors and appoints and ac- 
credits our ambassadors to foreign countries. 
This makes him our sole representative in 
dealing with foreign countries. He negoti- 
ates and initiates treaties. Neither the res- 
olutions of Congress nor of the Senate con- 
trol him in this. If he does not wish to 
make a treaty, the treaty is not made. If 
he makes a treaty, it has no binding force 
upon the United States without the consent 
of two-thirds of the Senate present and vot- 
ing. Of course, where a treaty provision re- 
quires for its performance legislative action, 
as, for instance, the appropriation of money 
to meet payment agreed to in the treaty, 
congressional neglect or refusal may defeat 
the performance of the treaty; but it can- 
not affect its binding obHgation. A sover- 



FOREIGN RELATIONS 99 

eign nation, though it makes a treaty, has 
the power to break it, even though it be vio- 
lating its plighted faith and doing an immoral 
thing. If it could not it would not be sov- 
ereign. Therefore, Congress may make a law 
which is binding on the courts and on the 
people within its jurisdiction, though the 
law violate a binding treaty. As an act of 
Congress can repeal a treaty operating as a 
municipal law, so a treaty can repeal an act 
of Congress in so far as the treaty contains 
provisions which in their nature can oper- 
ate as law and are inconsistent with existing 
statute. Much confusion arises in the minds 
of laymen in regard to these principles, but 
the rule is perfectly simple when it is under- 
stood. I had a communication from a man 
who asked me if the Supreme Court was not 
very weak on the subject of enforcing our 
treaty obligations with other nations. The 
court only enforces law as it finds it, and as 
a treaty is a law so a statute is a law, and 
that which comes later repeals what was 
earlier with which it is inconsistent. To 



loo THE PRESIDENCY 

hold otherwise would be to give a treaty, 
recognized as law under the Constitution, 
not the force of law but the force of con- 
stitutional restriction. 

The mere power of receiving ambassadors, 
on first reading, would seem to mean that 
he ought to keep the White House open and 
entertain them in a friendly way, but of 
course it means much more. He conducts 
all the correspondence with other countries 
through the State Department. After treaties 
are made it falls to him in the negotiation 
with foreign governments, with whom they 
are made, to agree upon a practical construc- 
tion of them. When claims of our citizens 
are presented, as against foreign govern- 
ments, the President, through the State De- 
partment, must formulate them and state 
the principles upon which they rest. When 
claims of foreign citizens or subjects are 
presented against the United States, they 
must be considered by the State Depart- 
ment, and while the State Department has 
no power to allow the payments of them, for 



FOREIGN RELATIONS loi 

that must be exercised by Congress, it may, 
nevertheless, make admissions with respect 
to them that will in a way form a precedent 
against the whole government. In receiving 
foreign ambassadors and in sending our am- 
bassadors to foreign countries, it necessarily 
devolves upon the President to determine 
who is the head of that government. So he 
has the power and duty to recognize or to 
refuse to recognize persons claiming to be 
the lawful government in any state. This 
power of recognition is sometimes a most 
important one, and it is wholly within the 
discretion of the President. We have seen 
how important it is in the refusal of the 
President to recognize Huerta, which drove 
him from power by preventing him from 
securing the financial aid which would have 
enabled him probably to overcome the forces 
against him. Now, a similar question arises 
as between Carranza and Villa, and the exer- 
cise of the power is likely to have a very 
material effect in the result. The dissent- 
ing judges in the Neagle case ascribed the 



I02 THE PRESIDENCY 

power which the President exercised through 
the navy in taking Kotza, an embryo Amer- 
ican citizen, from an Austrian corvette, in a 
harbor of Asia Minor, to his control over 
our international relations. On this ground, 
too, the attorney-general sustained the power 
of the President, in the absence of legislative 
or treaty action, to allow the landing of a 
cable from a foreign country upon the soil 
of the United States. 

I have been greatly interested in securing 
the adoption of general treaties of arbitra- 
tion to dispose of all justiciable questions 
that are likely to arise between the nations. 
I attempted to secure the ratification by the 
Senate of treaties of this kind which I had 
made with France and England. The Sen- 
ate refused to confirm the treaties except 
with such narrowing amendments that it 
seemed to me futile to attempt to negotiate 
them. The turning-point was whether the 
Senate had the power to agree that all ques- 
tions of a certain description should be sub- 
mitted to arbitration and to leave to the 



FOREIGN RELATIONS 103 

tribunal of arbitration the question of juris- 
diction under it, that is, the issue whether a 
future controversy involved questions within 
the class. Learned senators contended that 
this would be an invalid delegation of the 
function of the Senate to a tribunal of arbi- 
tration. It would not be a delegation of 
the authority of the Senate any more than 
it would be a delegation of the authority of 
the President, because the Senate's function 
is no more sacred, and no more necessary to 
the making of a treaty, than is the function 
which the President performs. I confess I 
have never been able to appreciate the force 
of the negative argument by the Senate in 
regard to this matter. The question of the 
jurisdiction of a tribunal to hear a particular 
question and to decide whether the ques- 
tion comes within the class of questions over 
which the treaty gives them jurisdiction is a 
question of the construction of a treaty, and 
the construction of a treaty is one of the 
commonest issues between nations submitted 
to arbitration. The agreement to abide a 



I04 THE PRESIDENCY 

judgment as to jurisdiction in future is no 
more a delegation of control over foreign 
affairs than is an agreement to abide a judg- 
ment of an existing controversy in respect 
to such relations. The narrow view that 
the Senate has taken in this matter is incon- 
sistent with any arbitration at all, and it 
precludes all useful treaties of arbitration in 
advance of the occurrence of the quarrel to 
be arbitrated. It destroys all hope of an 
international court for the settlement of 
international disputes. The position is ut- 
terly untenable as a question of constitu- 
tional law. In the Hght of the present war 
in Europe, perhaps we cannot say that the 
question has pressing importance, but after 
this war is over and after the nations are 
exhausted perhaps they will look at treaties 
of arbitration in a somewhat different light 
from that in which they have regarded them 
heretofore. 

I have thus, at possibly too great length, 
considered the powers of the executive un- 



DISCRETIONARY POWERS 105 

der the federal Constitution. In theory the 
executive power and the legislative power 
are independent and separate, but it is not 
always easy to draw the line and to say 
where legislative control and direction to 
the executive must cease and where his 
independent discretionary action begins. In 
theory all the executive officers appointed 
by him, directly or indirectly, are his subor- 
dinates, and yet Congress can undoubtedly 
pass laws definitely limiting their discretion 
and commanding a certain course by them 
which it is not within the power of the exec- 
utive to vary. Congress may repose a dis- 
cretion in appointees of the President which 
he may not control. Thus the comptroller 
of the treasury, having a duty to pass upon 
the payments that are to be made out of the 
public funds, and to draw his warrant on 
the treasury, must decide for himself whether 
it is lawful for him to draw the warrant. 
He acts in a quasi-judicial manner in pass- 
ing on the accounts and is in no sense under 
the President's direction. And this is true 



io6 THE PRESIDENCY 

*mm M ^i^— i^^— ^— — ^1 ■■—■■I .— .. ■ - - . — .■■».■■-■— IB M ■ I II ■■■ ai^— ^— — ^ 

of the action of the secretary of the interior 
in passing upon the question in respect to 
land claims. As between a court directing 
the action of a marshal and a contrary order 
of the President, the marshal is bound by 
law to follow the court's direction. Yet if 
the marshal is obstructed, and he calls upon 
the President to send the army to overcome 
the obstruction, the President cannot be com- 
pelled to act. Jackson failed to execute the 
mandate of reversal which the Supreme 
Court issued — to release a missionary con- 
victed in a Georgia court of unlawfully en- 
tering an Indian reservation which the Su- 
preme Court held not to be within the 
jurisdiction of Georgia. The court could 
not control the President, and so the writ 
went unexecuted. 

The rule seems to be that Congress may 
not control by legislation the constitutional 
powers of the President when the legislation 
in any way limits the discretion which the 
Constitution plainly confers. In the mat- 
ter of appointments. Presidents have been 



DISCRETIONARY POWERS 107 

quick to resent encroachment by Congress. 
In the case of Fitz-John Porter, President 
Arthur made a precedent which prevails. 
Porter had been sentenced by court martial 
for his alleged misconduct in failing to sup- 
port Pope in the second battle of Bull Run. 
Twenty years after the court martial, when 
Porter's friends were in the majority in Con- 
gress, they passed an act authorizing the 
President to appoint him a colonel in the 
regular army. Mr. Arthur vetoed the bill, 
and one of the grounds he gave was that 
it was an encroachment on the executive 
power to make the creation of an office 
conditioned on the appointment of an indi- 
vidual. 

When General Grant was dying at Mount 
McGregor, Congress, in response to a throb 
of sympathy and gratitude throughout the 
nation, wished to have him put on the re- 
tired list as a full general, but the act did 
not mention Grant's name. It merely pro- 
vided that from among the living command- 
ing generals the President might nominate 



io8 THE PRESIDENCY 

one and, with the consent of the Senate, 
appoint him to be a full general on the 
retired list, with full pay. That act was 
passed, and General Grant was reappointed 
three months before his death. 

The extent of the right of the President 
to make appointments without congressional 
control or limitation has been strongly as- 
serted in the present administration. A ma- 
jor who was, under the statute regulating 
promotions, entitled to a promotion to a 
vacancy was not a man whom the Presi- 
dent thought ought to be promoted. He 
therefore passed him over and nominated 
the next officer in rank to the vacancy. 
The then attorney-general rendered an opin- 
ion that the President could not be limited 
in his appointment of army officers by rules 
as to promotion in the army contained in 
the Army-Organization Act. I am not aware 
of what action the Senate has taken. At- 
tempt was made by some proceeding in 
court to prevent the passing over of the offi- 
cer first entitled, but the jurisdiction of the 



DISCRETIONARY POWERS 109 

court could not be maintained. If Con- 
gress may not provide by law a rule of 
eligibility for promotion in the army and 
navy, or if the President may refuse to con- 
form to such a law, it is difficult to see how 
Congress may exercise the power which it 
is given by the Constitution to raise and 
support armies and make rules for the gov- 
ernment and regulation of the land and 
naval forces. Rules of eligibility for pro- 
motion would seem to be rules for the regu- 
lation of the army forces. No one can, 
however, compel the President to make a 
nomination, and the only method of pre- 
venting his nominating some one other than 
the one specified by law is for the Senate to 
refuse to confirm him. If the Senate con- 
firms him, the accounting officers of the 
treasury will recognize him as lawfully fill- 
ing the position to which he has been ap- 
pointed and confirmed. I don't quite see 
how the validity of the President's action 
and that of the Senate can be tested or over- 
thrown. This is only one of the numerous 



no TEE PRESIDENCY 

instances in which the Constitution is prac- 
tically construed by the President, without 
the intervention of the courts. 

Then the question as to eliciting informa- 
tion from the executive has given rise to a 
large amount of controversy, beginning as 
far back as Washington's day. The execu- 
tive has always insisted and maintained that, 
while either house may request information, 
it cannot compel it if the executive deems 
it to be inconsistent with the public weal to 
disclose what is asked. 

In the trial of Aaron Burr for treason, 
Marshall directed a subpoena duces tecum to 
be served on President Jefferson, requiring 
him to bring with him papers bearing on the 
issue. Jefferson wrote a letter to the dis- 
trict attorney declining, on the ground that 
it would interfere with his official duties, to 
attend. This has formed a precedent ever 
since. 

In the last days of Grant's administra- 
tion, when the House of Representatives 
was Democratic, and when President Grant 



DISCRETIONARY POWERS iii 

was being criticised for spending some of 
the hot months at Long Branch, the House 
of Representatives sent a resolution asking 
for information as to how many executive 
acts were performed at other places than the 
seat of government. The inquiry evidently 
aroused the general, for his declination to 
furnish the information is quite spirited. 
He declined to admit that under the Con- 
stitution he was obliged to perform acts at 
the seat of government, and proceeded to 
show, by historical reference, that many acts 
by former Presidents had been performed 
elsewhere than at the then federal capital. 
In addition, he filed a statement of the time 
spent at the seat of government by each 
President, from which it appeared that the 
President who was more often absent from 
Washington and the seat of government 
than any other was Mr. Jefferson, a full 
quarter of whose time was spent at Monti- 
cello. This ended the curiosity of the Demo- 
cratic house. 
Another respect in which the President's 



112 THE PRESIDENCY 

authority could not be invaded by legisla- 
tion is in preventing his use of the army to 
V execute the laws. He is charged in the Con- 
stitution with the duty of taking care that 
they be faithfully executed, and he is made 
commander-in-chief of the army and navy, 
evidently for the purpose of enabling him 
to perform the duty enjoined on him in re- 
spect to the laws by use of the army and 
navy under his control. For Congress to say 
that he cannot use it as such an instrument 
would be interfering with that exercise of ex- 
ecutive power that seems to be intended by 
the fundamental law. Of course, Congress 
may not exercise the right of pardon, it may 
not issue an amnesty, and it may not control 
the President in his management of foreign 
relations in the initiation of a treaty, in the 
conduct of correspondence, in the transmis- 
sion of messages and resolutions affecting 
foreign countries and intended to express the 
opinion of Congress. The President may 
withhold transmission of them. 

In my administration the lower house 



DISCRETIONARY POWERS 113 

passed a resolution directing the abrogation 
of the Russian Treaty of 1832, couched in 
terms which would have been most offensive 
to Russia, and it did this by a vote so nearly 
unanimous as to indicate that in the Senate, 
too, the same resolution would pass. It 
would have strained our relations with Rus- 
sia in a way that seemed unwise. The treaty 
was an old one, and its construction had 
been constantly the subject of controversy 
between the two countries, and therefore, to 
obviate what I felt would produce unneces- 
sary trouble in our foreign relations, I indi- 
cated to the Russian ambassador the situa- 
tion, and advised him that I deemed it wise 
to abrogate the treaty, which, as President, 
I had the right to do by due notice couched 
in a friendly and courteous tone and ac- 
companied by an invitation to begin nego- 
tiations for a new treaty. Having done this, 
I notified the Senate of the fact, and this 
enabled the wiser heads of the Senate to 
substitute for the house resolution a resolu- 
tion approving my action, and in this way 



114 THE PRESIDENCY 

the passage of the dangerous resolution was 
avoided. 

The courts are very careful in exercising 
control over the executive where a duty is 
merely ministerial. Where its discharge does 
not involve official discretion, like the issu- 
ing of a commission after it had been signed 
and delivered by the President to the sec- 
retary of war, as in Marbury vs. Madison; 
like the making of credits in an account 
which Congress had specifically directed, as 
in Kendall vs, the United States; like the 
issuing of a patent after everything had 
been completed save the mere dehvery, as 
in United States vs. Shurtz, a mandamus is 
allowed to issue; but in other cases, where 
official discretion is reposed in the officer, 
even though that involves the legal construc- 
tion of a statute, the courts have refused to 
control the action of the officer. Of course, 
they have not felt themselves bound by his 
construction of the statute, should it be in- 
volved in litigation before them and come 
before them in such a way that the rights of 



DISCRETIONARY POWERS 115 

the parties depend on its construction by 
the court; but they have always declined 
to interfere with the official discretion of the 
officer and the acts performed in the exer- 
cise of that discretion. 

In Mississippi vs, Johnson it was sought 
to enjoin President Johnson from carrying 
out the reconstruction policy adopted by 
Congress in the States which had seceded 
and which had been conquered. The Su- 
preme Court refused the relief asked, on the 
ground that the action of the President in 
carrying out the reconstruction acts was 
the performance of an official duty which 
the courts would not attempt to control. 
As I have said, they have issued writs of 
mandamus against heads of departments, 
but whether the President be exempt from 
this or not has not been decided by the 
court. If he is not subject to subpoena, as 
Jefferson maintained, it would seem as if he 
were beyond the reach of a mandamus in 
any case. If he should refuse, it would be 
difficult for the court to enforce the writ. 



ii6 THE PRESIDENCY 

The court has fully conceded its duty to 
recognize as binding upon it the political 
powers exercised by the executive and the 
legislative departments of the government 
under the Constitution. Possibly the latest 
case of this kind is the one in which a cor- 
poration sought to evade the payment of 
taxes in Oregon, on the ground that the law 
under which they were exacted had been 
passed by an initiative and referendum. It 
was said that an initiative and a referendum 
were inconsistent with the republican form 
of government, and, as the United States 
guaranteed a republican form of government, 
such a method of taxation must be invalid 
under the federal Constitution. The Su- 
preme Court said that the question whether 
a State had a republican form of govern- 
ment or not was a poHtical question for Con- 
gress to settle, and that as long as Congress 
continued to recognize Oregon as a State 
having a republican form of government, 
it was not for the court to investigate the 
question. Congressional or executive action 



DISCRETIONARY POWERS 117 

in the question of national territorial juris- 
diction is political and conclusive upon the 
court. An important case in which, as 
solicitor-general, I had the honor to be of 
counsel was this : Mr. Blaine sought to main- 
tain, in correspondence with Lord Salis- 
bury, that by reason of our purchase from 
Russia we had acquired territorial jurisdic- 
tion over the Bering Sea, and therefore that 
our revenue cutters might arrest Canadian 
schooners engaged in pelagic sealing in that 
sea contrary to the statutes of the United 
States. The government of Great Britain 
appeared, by Mr. Joseph Choate as counsel, 
in the Supreme Court, submitted to the 
jurisdiction of that court, and prayed for a 
writ of prohibition against the Admiralty 
Court of the United States, sitting in Alaska, 
to prevent that court from forfeiting and 
selling a Canadian fishing schooner which 
had been engaged in such pelagic sealing 
more than three miles from the shore. The 
Supreme Court expressed its appreciation 
of the compliment and confidence shown in 



ii8 THE PRESIDENCY 

it by the application of a foreign govern- 
ment, but said that it was bound by the 
attitude of the State Department and could 
not re-examine the international jurisdic- 
tional issue as a judicial question for that 
court. 

One of the great questions that the execu- 
tive has had to meet in the past has been 
how far he might properly differ from the 
Supreme Court in the construction of the 
Constitution in the discharge of his duties. 
Jefferson laid it down with emphasis with 
reference to the sedition law, saying: 

The judges, believing the law constitutional, had a 
right to pass a sentence of fine and imprisonment, be- 
cause the power was placed in their hands by the Con- 
stitution. But the executive, believing the law to be 
unconstitutional, were to remit the execution of it, 
because that power has been confided to them by the 
Constitution. That instrument meant that its co- 
ordinate branches should be checks on each other. 
But the opinion which gives to the judges the right to 
decide what laws are constitutional and what not, not 
only for themselves in their own sphere of action, but 
for the legislature and executive also in their spheres, 
would make the judiciary a despotic branch. 



DISCRETIONARY POWERS 119 

And so Jackson, in his message vetoing the 
renewal of the charter to the bank of the 
United States, in respect to the opinion of 
the Supreme Court confirming the consti- 
tutionality of the previous charter, said : 

If the opinion of the Supreme Court covered the 
whole ground of this case it ought not to control the 
co-ordinate authorities of this government. The Con- 
gress, the executive, and the court must each for itself 
be guided by its own opinion of the Constitution. 
Each public officer who takes an oath to support the 
Constitution swears that he will support it as he under- 
stands it and not as it is understood by others. It is 
as much the duty of the House of Representatives, of 
the Senate, and of the President to decide upon the 
constitutionality of any bill or resolution which may 
be presented to them for passage or approval as it is 
of the supreme judges when it may be brought be- 
fore them for judicial decision. The opinion of the 
judges has no more authority over Congress than the 
opinion of Congress has over the judges, and on that 
point the President is independent of both. The au- 
thority of the Supreme Court must not, therefore, be 
permitted to control the Congress or the executive 
when acting in their legislative capacities, but to have 
only such influence as the force of their reasoning may 
deserve. 



I20 THE PRESIDENCY 

Mr. Lincoln, in his reference to the Dred 
Scott case, said: 



I do not forget the position assumed by some that 
constitutional questions are to be decided by the Su- 
preme Court, nor do I deny that such decisions must 
be binding in any case upon the parties to a suit as 
to the object of that suit, while they are also entitled 
to very high respect and consideration in all parallel 
cases by all other departments of the government. 
And while it is obviously possible that such decision 
may be erroneous in any given case, still the evil eflFect 
following it, being limited to that particular case, with 
the chance that it may be overruled and never become 
a precedent for other cases, can better be borne than 
could the evils of a different practise. At the same 
time, the candid citizen must confess that if the policy 
of the government upon vital questions affecting the 
whole people is to be irrevocably fixed by decisions of 
the Supreme Court, the instant they are made in ordi- 
nary litigation between parties in personal actions the 
people will have ceased to be their own rulers, having 
to that extent practically resigned their government 
into the hands of that eminent tribunal. Nor is there 
in this view any assault upon the court or the judges. 
It is a duty from which they may not shrink to decide 
cases properly brought before them, and it is no fault 
of theirs if others seek to turn their decisions to polit- 
ical purposes. 



SCOPE OF EXECUTIVE POWER 121 

I do not intend to dispute the attitude 
of these distinguished men, although we find 
that the attitude of Presidents changes some- 
what as their agreement with the court in 
its construction varies. It is sufficient to 
say that the court is a permanent body re- 
specting precedent and seeking consistency 
in its decisions, and that therefore its view 
of the Constitution, whether binding on the 
executive and the legislature or not, is likely 
ultimately to prevail as accepted law. 

In closing I wish to speak of the general 
character of the federal executive power as 
limited by the Constitution and the stat- 
utes. 

A Virginian statesman, Abel P. Upshur, a 
strict constructionist of the old school, was 
secretary of state under President Tyler. 
He was aroused by Story's commentaries on 
the Constitution to write a monograph an- 
swering and criticising them, and in the 
course of this he thus comments on the 
executive power under the Constitution : 



122 THE PRESIDENCY 

The most defective part of the Constitution, beyond 
all question, is that which relates to the executive de- 
partment. It is impossible to read that instrument 
without being struck with the loose and unguarded 
terms in which the powers and duties of the President 
are pointed out. So far as the legislature is concerned, 
the limitations of the Constitution are, perhaps, as 
precise and strict as they could safely have been made; 
but in regard to the executive, the convention appears 
to have studiously selected such loose and general ex- 
pressions as would enable the President, by implica- 
tion and construction, either to neglect his duties or 
to enlarge his powers. We have heard it gravely as- 
serted in Congress that whatever power is neither leg- 
islative nor judiciary is, of course, executive and, as 
such, belongs to the President under the Constitution. 
How far a majority of that body would have sustained 
a doctrine so monstrous, and so utterly at war with the 
whole genius of our government, it is impossible to say, 
but this, at least, we know, that it met with no rebuke 
from those who supported the particular act of execu- 
tive power in defense of which it was urged. Be this 
as it may, it is a reproach to the Constitution that the 
executive trust is so ill defined as to leave any plausible 
pretense, even to the insane zeal of party devotion, for 
attributing to the President of the United States the 
powers of a despot; powers which are wholly unknown 
in any limited monarchy in the world. 

The view that he takes as the result of 
the loose language defining the executive 



SCOPE OF EXECUTIVE POWER 123 

powers seems exaggerated, and yet in recent 
years there has been advanced such a view 
of the executive powers that may very well 
arouse in men who are not such strict con- 
structionists of the Constitution real con- 
cern if those views are to receive the general 
acquiescence. Mr. Garfield, when secretary 
of the interior under Mr. Roosevelt, in his 
final report to Congress used this general 
expression in reference to the power of the 
executive over the public domain: 

Full power under the Constitution was vested in the 
executive branch of the government, and the extent 
to which that power may be exercised is governed wholly 
by the discretion of the executive, unless any specific 
act has been prohibited either by the Constitution or 
by legislation. 

In pursuance of this principle, Mr. Gar- 
field, under an act for the reclamation of 
arid land by irrigation, which authorized 
him to make contracts for irrigation works 
and incur liability equal to the amount on 
deposit in the reclamation fund, made con- 
tracts with associations of settlers by which 



124 THE PRESIDENCY 

it was agreed that, if these settlers would 
advance money and work, they might re- 
ceive certificates from the government en- 
gineers showing the labor and money fur- 
nished by them, and that such certificates 
might be received in the future in the dis- 
charge of their legal obligations to the gov- 
ernment for water-rent and other things 
under the statute. It became necessary for 
the succeeding administration to pass on 
the vaHdity of these government certificates. 
They were held by Attorney-General Wick- 
ersham to be illegal, on the ground that no 
authority existed for their issuance. He re- 
Hed on the Floj^d acceptances, in 7th Wallace, 
in which recovery was sought in the Court 
of Claims on commercial paper in the form 
of acceptances signed by Mr. Floyd when 
secretary of war and dehvered to certain 
contractors. The court held that they were 
void because the secretary of war had no 
statutory authority to issue them. 

Mr. Justice Miller, in deciding the case, 
said: 



SCOPE OF EXECUTIVE POWER 125 

The answer which at once suggests itself to one fa- 
miliar with the structure of our government, in which all 
power is delegated, and is defined by law, constitutional 
or statutory, is, that to one or both of these sources 
we must resort in every instance. We have no officers 
in this government, from the President down to the 
most subordinate agent, who does not hold office un- 
der the law, with prescribed duties and limited author- 
ity. And while some of these, as the President, the 
legislature, and the judiciary, exercise powers in some 
sense left to the more general definitions necessarily 
incident to the fundamental law found in the Con- 
stitution, the larger portion of them are the creation 
of statutory law, with duties and powers prescribed 
and limited by that law. 

In the light of this view of the Supreme 
Court on executive duties, it is interesting 
to compare the language of Mr. Roosevelt, 
in his Notes for a Possible Autobiography y on 
the subject of "Executive Powers," in which 
he says: 

The most important factor in getting the right spirit 
in my administration, next to insistence upon courage, 
honesty, and a genuine democracy of desire to serve 
the plain people, was my insistence upon the theory 
that the executive power was limited only by specific 
restrictions and prohibitions appearing in the Con- 



126 THE PRESIDENCY 

stitution or imposed by Congress under its constitu- 
tional powers. My view was that every executive 
officer, and above all every executive officer in high 
position, was a steward of the people, bound actively 
and affirmatively to do all he could for the people and 
not to content himself with the negative merit of keep- 
ing his talents undamaged in a napkin. I declined to 
adopt this view that what was imperatively necessary 
for the nation could not be done by the President un- 
less he could find some specific authorization to do it. 
My belief was that it was not only his right but his 
duty to do anything that the needs of the nation de- 
manded unless such action was forbidden by the Con- 
stitution or by the laws. Under this interpretation 
of executive power I did and caused to be done many 
things not previously done by the President and the 
heads of the departments. I did not usurp power 
but I did greatly broaden the use of executive power. 
In other words, I acted for the common well-being of 
all our people whenever and in whatever measure was 
necessary, unless prevented by direct constitutional 
or legislative prohibition. 

Now, my own judgment is that this is 
an unsafe doctrine, and that it might lead, 
under emergencies, to results of an arbi- 
trary character, doing irremediable injus- 
tice to private right. The mainspring of 
such a view is that the executive is charged 



SCOPE OF EXECUTIVE POWER 127 

with responsibility for the welfare of all the 
people in a general way: that he is to play 
the part of a universal providence and set 
all things right, and that anything that in 
his judgment will help the people he ought 
to do, unless he is expressly forbidden not 
to do it. The wide field of action that this 
gives to the executive one can hardly de- 
scribe because of its undefined extent. It 
is enough to say that Mr. Roosevelt has 
shown how far he thought this principle 
would justify him in going in respect to the 
coal famine and the anthracite strike which 
he did so much useful work in settling. 
What was actually done was the result of 
his activity, his power to influence public 
opinion, and the effect of the prestige of his 
great office in bringing the parties to the 
controversy — the mine-owners and the strik- 
ers — to a legal settlement by arbitration. 
No one has a higher admiration for the value 
of what he did there than I have. But if 
he had failed in this he proposed to take 
action on the principle of the extent of the 



128 THE PRESIDENCY 

executive power which I have shown by his 
own words. I quote from the same book 
from which his other words are taken. Mr. 
Roosevelt says: 

In my own mind, I was already planning effective 
action, but it was of a very drastic character, and I 
did not wish to take it until the failure of all other 
expedients had rendered it necessary. ... I had defi- 
nitely determined that, somehow or other, act I would, 
that somehow or other the coal famine should be 
broken. To accomplish this end it was necessary that 
the mines should be run, and if I could get no vol- 
untary agreement between the contending sides that 
an arbitration commission should be appointed which 
would command such public confidence as to enable 
me, without too much difficulty, to enforce its terms 
on the parties. 



Meanwhile, the governor of Pennsylvania had all the 
Pennsylvania militia in the anthracite region, although 
without any effect upon the resumption of mining. 
The method of action upon which I had determined 
was to get the governor of Pennsylvania to ask me to 
keep order. Then I would put in the army under the 
command of some first-rate general. I would instruct 
this general to keep absolute order, taking any steps 
whatever that were necessary to prevent interference 



SCOPE OF EXECUTIVE POWER 129 

by the strikers or their sympathizers with men. who 
wanted to work. I would also instruct him to dis- 
possess the operators and run the mines as a receiver 
until such time as the commission might make its 
report and until I as President might issue further 
orders in view of this report. 

Now, it is perfectly evident that Mr. 
Roosevelt thinks that he was charged with 
the duty not only to suppress disorder in 
Pennsylvania but to furnish coal to avoid 
the coal famine in New York and New Eng- 
land, and therefore he proposed to use the 
army of the United States to mine the coal 
which should prevent or relieve the famine. 
It was his intention to take the coal-mines 
out of the hands of their lawful owners, and 
to mine the coal which belonged to them 
and sell it in the Eastern market, against 
their objection, without any court proceed- 
ing of any kind and without any legal obli- 
gation on their part to work the mines at 
all. It was an advocacy of a higher law 
and his obligation to execute it which it 
is a little startling to find advanced by 



I30 THE PRESIDENCY 

a former President of a constitutional re- 
public. It is perfectly evident from his 
statement that it was not the maintenance 
of law and order in Pennsylvania and the 
suppression of insurrection, the only ground 
upon which he could intervene at all, that 
actuated him in what he proposed to do. 
He used the expression that he would "get" 
the governor of Pennsylvania to call for 
troops from him, and then, having secured 
a formal authority for the use of the army 
to suppress disorder, he proposed to use it 
for the seizure of private property and its 
appropriation for the benefit of the people 
of other States. The benevolence of his 
purpose no one can deny, but no one who 
looks at it from the standpoint of a govern- 
ment of law could regard it as anything but 
lawless. I venture to doubt whether, had 
the exigency arisen, he would have proceeded 
to such extremity. I think he would have 
listened to those about him, who were better 
advised as to the constitutional limitations 
imposed on him by his oath of office. 



SCOPE OF EXECUTIVE POWER 131 

I am aware that there are many who be- 
lieve in government ownership of the sources 
of public comfort in the interest of the 
community at large; but it is certainly only 
the extremists of that school that favor the 
use of the army under the President to 
seize the needed mines without constitu- 
tional amendment or legislative and judicial 
action. Mr. Roosevelt, in his subsequent re- 
marks, seems to find a justification for his 
general view of the limitations of executive 
power in what Mr. Lincoln did during the 
Civil War. That Mr. Lincoln, with the stress 
of the greatest civil war in modern times, 
felt called upon to do things the constitu- 
tionality of which was seriously questioned 
is undoubtedly true. But Mr. Lincoln al- 
ways pointed out the source of the authority 
which, in his opinion, justified his acts, and 
there was always a strong ground for main- 
taining the view which he took. His claim 
of right to suspend the writ of habeas corpus, 
I venture to think, was well founded. Con- 
gress subsequently expressly gave him this 



132 THE PRESIDENCY 

right, and the Supreme Court sustained his 
exercise of it under the act of Congress. His 
Emancipation Proclamation was attacked 
as an unconstitutional exercise of authority, 
but he defended it as an act of the com- 
mander-in-chief, justified by military neces- 
sity, to weaken the enemies of the nation 
and suppress their rebellion. Certainly the 
arguments that he and those who supported 
his action brought to sustain it have great 
weight. But Mr. Lincoln never claimed that 
whatever authority in government was not 
expressly denied to him he could exercise. 

In my reading recently I ran across a case 
which attracted great attention at the time, 
now more than one hundred years ago. It 
concerned the action of another President 
of great popularity, great power, great men- 
tal activity, and great and equally genuine 
sympathy with the people and with popu- 
lar government — ^Thomas Jefferson. Mr. Jef- 
ferson was a strict constructionist of the 
Constitution in theory and in practise, but, 
as in the case of all of us, when he had 



SCOPE OF EXECUTIVE POWER 133 

power things looked differently to him and 
acts were justified in his mind and con- 
science on the theory that he was doing 
good and working for the public welfare. 
But, in his wide view of what he himself as 
President could do to preserve the public 
welfare, he did something that troubled him 
even after he left the presidency. 

The owners of a large tract of land reach- 
ing to the Mississippi River, just outside of 
New Orleans and a part of its suburbs, 
claimed and exercised title over alluvial ex- 
tension of that land deposited by the river 
as lawful accretion to their property. They 
gave deeds covering it and sought to exclude 
people of the city who took sand therefrom. 
In this litigation Edward Livingston, who 
had gone from New York to New Orleans 
just after the acquisition of the territory, 
appeared as counsel for the riparian owner, 
obtained judgment, and as part of his com- 
pensation received some of the land. He 
attempted to improve the land which had 
been deposited, to protect it against the 



134 THE PRESIDENCY 

wearing of the river, and to build a canal 
through it. The Territorial governor was 
Claiborne, and the people of the town who 
had been shut out by the action of the 
local court appealed to Claiborne. He sub- 
mitted the matter to Mr. Jefferson, who 
consulted his attorney-general, and there- 
upon, under avowed authority of a federal 
statute authorizing him to put squatters 
off federal domain, he issued a warrant 
directing the United States marshal to take 
possession of the land in question and to 
hold it for the benefit of the people of New 
Orleans, on the ground that it belonged 
to the United States. The local court is- 
sued an injunction against the marshal's 
complying with this order of the President. 
The marshal refused to obey the injunc- 
tion, and, using adequate force, opened the 
land to the use of the people of the city, 
who continued to take sand therefrom, ex- 
posed the land to the danger of a flood 
which it was being improved to prevent, 
and Livingston and his associates, through 



SCOPE OF EXfiCUriVE POWER. 135 

a flood, lost a very large sum of money by 
reason of this invasion. Livingston went to 
Washington twice to be heard, and was re- 
fused an opportunity to argue the case, or 
to know the grounds upon which action of 
the President had been taken, or to see the 
opinion of the attorney-general upon which 
it was based. He applied to Congress with- 
out avail. He then went into the courts of 
Louisiana again, and he brought suit against 
Jefferson personally, for trespass, in the fed- 
eral court of Virginia. The suit was dis- 
missed by Chief Justice Marshall and Dis- 
trict Judge Tyler, the father of President 
Tyler, on the ground that the court in Vir- 
ginia had no jurisdiction of a trespass com- 
mitted on land in Louisiana. Thereafter 
Mr. Jefferson published a defense of his 
action, which brought out an answer from 
Livingston. Livingston was a jurist of tran- 
scendent ability, especially versed in the 
civil law, and he wrote an answer to Mr. 
Jefferson which was so convincing on the 
issues Mr. Jefferson advanced, and was so 



136 THE PRESIDENCY 

replete with wit and humor and satire, that 
even the British Encyclopedia described it as 
crushing. In the course of this answer Liv- 
ingston used some language that, it seems to 
me, would have been properly applicable to 
the proceedings which Mr. Roosevelt pro- 
posed to take, and which he frankly calls 
drastic. Mr. Roosevelt says there would 
doubtless have been an outcry against his 
proceedings. It would have been denounced 
as a usurpation; but he thinks that the good 
he would have done would have rallied to 
his support the great body of the people in 
whose interest he would have done it, and 
thus his plan would have vindicated itself. 
Mr. Livingston opened his answer to Jeffer- 
son as follows: 

When a public functionary abuses his power by an 
act which bears on the community, his conduct excites 
attention, provokes popular resentment, and seldom 
fails to receive the punishment it merits. Should an 
individual be chosen for the victim, little sympathy is 
created for his sufferings, if the interest of all is sup- 
posed to be promoted by the ruin of one. The gloss 
of zeal for the public is therefore always spread over 



SCOPE OF EXECUTIVE POWER 137 

facts of oppression, and the people are sometimes made 
to consider that as a brilliant exertion of energy in 
their favor, which, when viewed in its true light, would 
be found a fatal blow to their rights. 

In no government is this effect so easily produced 
as in a free republic; party spirit, inseparable from its 
existence, there aids the illusion, and a popular leader 
is allowed, in many instances, impunity and sometimes 
rewarded with applause for acts that would make a 
tyrant tremble on his throne. This evil must exist in 
a degree — it is founded in the natural course of human 
passions; but in a wise and enlightened nation it will 
be restrained; and the consciousness that it must ex- 
ist will make such a people more watchful to prevent 
its abuse. These reflections occur to one whose prop- 
erty, without trial or any of the forms of law, has been 
violently seized by the first magistrate of the Union, — 
who has hitherto vainly solicited an inquiry into his 
title, — who has seen the conduct of his oppressor ex- 
cused or applauded, — and who, in the book he is now 
about to examine, finds an attempt openly to justify 
that conduct upon principles as dangerous as the act 
was illegal and unjust. 

I would not dwell upon this subject were 
it not of great current importance with ref- 
erence to the course urged upon President 
Wilson in the maintenance of order in Col- 
orado. He was advised to use the United 



138 THE PRESIDENCY 

States troops to close the mines, which 
were running and producing a substantial 
part of their normal product. The closing 
of mines might have been a sop to those 
who threatened violence in case the troops 
were withdrawn and so mitigate their law- 
lessness for a time. But was it a proper 
method of maintaining order to deprive 
men of the right of property that it was 
the very object of the constitutional provi- 
sion of federal intervention to protect ? No 
one claimed the operation of the mines was 
unlawful. It was only said that their con- 
tinued operation after the withdrawal of the 
federal troops would lead to disturbance. 
By whom .? By the strikers. Was this not 
a proposition to compel an owner of prop- 
erty to cease its lawful use because his for- 
mer employees would otherwise attempt un- 
lawfully and violently to prevent such use? 
This is carrying the blanket of martial law 
to a point that I feel certain the President 
thought was unjustified. 

I have now concluded a review of the 



SCOPE OF EXECUTIVE POWER 139 

executive power, and hope that I have shown 
that it is Hmited, so far as it is possible to 
limit such a power consistent with that dis- 
cretion and promptness of action that are 
essential to preserve the interests of the 
public in times of emergency or legislative 
neglect or inaction. There is little danger 
to the public weal from the tyranny or reck- 
less character of a President who is not sus- 
tained by the people. The absence of pop- 
ular support will certainly, in the course of 
two years, withdraw from him the sympa- 
thetic action of at least one house of Con- 
gress, and by the control that that house 
has over appropriations the executive arm 
can be paralyzed, unless he resorts to a 
coup (VHaty which means impeachment, con- 
viction, and deposition. The only danger 
in the action of the executive under the 
present Hmitations and lack of limitations of 
his powers is when his popularity is such 
that he can be sure of the support of the 
electorate, and therefore of Congress, and 
when the majority in the legislative halls 



I40 TEE PRESIDENCY 

responds with alacrity and sycophancy to 
his will. This condition can probably never 
be long continued. We have had Presidents 
who felt the public pulse with accuracy, who 
played their parts upon the political stage 
with histrionic genius and commanded the 
people almost as if they were an army 
and the President their commander-in-chief. 
Yet in all these cases the good sense of the 
people has ultimately prevailed, no danger 
has been done to our poHtical structure, and 
the reign of law has continued. In such 
times, when the executive power seems to be 
all-prevailing, there have always been men 
in this free and intelligent people of ours 
who, apparently courting political humilia- 
tion and disaster, have registered protest 
against this undue executive domination and 
this use of the executive power and popular 
support to perpetuate itself. The cry of ex- 
ecutive domination is often entirely unjus- 
tified, as when the President's commanding 
influence only grows out of a proper cohesion 
of a party and its recognition of the neces- 



SCOPE OF EXECUTIVE POWER 141 

sky for political leadership; but the fact 
that executive domination is regarded as a 
useful ground for attack upon a successful 
administration, even when there is no real 
ground for it, is itself proof of the depend- 
ence we may properly place upon the sanity 
and clear perceptions of the people in avoid- 
ing its baneful effects when there is real 
danger. 

Even if a vicious precedent were set by 
the executive, and injustice done, it does 
not have the same bad effect that an im- 
proper precedent of a court may have, for 
one President does not consider himself 
bound by the policies or constitutional views 
of his predecessors. The Constitution does 
give the President wide discretion and great 
power, and it ought to do so. It calls from 
him activity and energy to see that within 
his proper sphere he does what his great re- 
sponsibiHties and opportunities require. He 
is no figurehead, and it is entirely proper 
that an energetic and active, clear-sighted 
people, who when they have work to do wish 



142 THE PRESIDENCY 

it done well, should be willing to rely upon 
their judgment in selecting their chief agent, 
and, having selected him, should intrust to 
him all the power needed to carry out their 
governmental purpose, great as it may be. 



INDEX 

Aaron Burr trial, no. 

Appointments to office, 52; effects of President's power 

in, 54; classified system of, 55-63. 
Appropriation, veto power in bill, 20-21; drawing 

money for act, 66. 

Cabinet, 27; meetings of, 30; Lincoln's, 31; Wash- 
ington's, 56-62. 

Civil service laws, 68. 

Claims against government, d']. 

Classified system of appointments, 55-63. 

Clerks of courts, 61-62. 

Congress, President's power to convene, 40; to adjourn, 
41; defects in legislation of, 81-85; power over offi- 
cers appointed by President, 105-108; power to raise 
and support armies, 109. 

Constitutional functions of President, 42-51. 

Cuba, government in, 92-94. 

Debs case, 90. 

Dred Scott case, 120. 

Duty of citizens to President, 51; 141-142. 

Eliciting information from President, no. 

Executive functions, inefficient performance of, by 

Continental Congress, 2-3; vesting of, 3. 
Executive power of President, 6; 10; 27-139; to issue 

commissions to officers, 35; to convene Congress, 40; 

143 



144 INDEX 

to adjourn Congress, 41; to appoint officers, 52; to 
remove officers, 53; to enforce laws, 63; commander- 
in-chief of army and navy, 85, 92; to maintain order, 
86-94; to grant pardons, 95-97; over foreign rela- 
tions, 97-104; limited by Constitution and statutes, 
121-138. 

Government of Canal Zone, 84-85. 

Income tax law, 64-65. 
Influence of parliament, 7. 

Judicial power, 6; 98. 

Kendall against United States, 114. 

Legislative power, 6; of President, 7-26, 97-99; 105. 
Limitations, of President, 47-51; 139; of Congress, 112. 
Livingston case, 133-137. 
Logan against United States, 80-81. 

Maintenance of order, 86-94; 127; 129; 132; 137-138. 
Marbury against Madison, 36; result, 37; 114. 
Messages to Congress, 35. 
"Midnight judges," 39. 
Mississippi against Johnson, 115. 

Neagle case, 76-79; 101-102. 
Nicaragua insurrection, 86. 

Order of extradition, 72-73. 

Pensions, 66, 



INDEX 145 

Pocket veto, 25. 

Porto Rico, government in, 92-94. 

Presidential correspondence, 30; 100. 

Presidential differences with Supreme Court, 118. 

Presidential right to leave, country, 44-45; seat of 

government, in. 
Presidential term of office, 4. 

Reciprocity bill, 40. 
Russian Treaty of 1832, 113. 

Secret service protection, 46-47. 

Senate, in Washington's day, 34; function in appoint- 
ments, 56-62. 
Subpoena on President, no; 115. 

Treaties, of United States, 71-75; Jay's with England, 
71; with Cuba, 74. 

Vera Cruz, our army at, 87. 

Veto power, 10-26; over part of a bill, 19; in an appro- 
priation bill, 20-21; expiration of, on a presented 
bill, 23-24. 

Webb bill, 17. 
White House, 43-44. 
Wilson-Gorman tariff bill, 24. 



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